R v Ashley Eugene Gibson

This is a renewed application for a lengthy extension of time within which to apply for leave to appeal against sentence following refusal by the single judge.

On 13 October 2021 in the Crown Court sitting at Southend, the applicant (now aged 34) was sentenced by HHJ Samantha Leigh for: two offences of aggravated burglary, contrary to section 10 of the Theft Act 1968; two offences of assault of an emergency worker, contrary to section 39 of the Criminal Justice Act 1988 and section 1 of the Assaults on Emergency Workers (Offences) Act 2018; and an offence of criminal damage. The judge imposed an extended determinate sentence of 13 years 2 months pursuant to section 279 of the Sentencing Act 2020, comprising a custodial term of 8 years 2 months and an extended licence period of 5 years. For each of the two assaults there was a concurrent sentence of 2 months' imprisonment. There was no separate penalty for the offence of criminal damage. The applicant had pleaded guilty to all the offences.

No appeal against sentence was lodged at the time, but on 3 September 2024 (nearly 3 years later) the applicant, acting in person, lodged grounds of appeal with an application for an extension of time. The extension required is 1028 days, that is 2 years 10 months. The applicant also applies for leave to adduce fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. We shall consider together the applications for an extension of time and for leave to appeal against sentence.

The facts can be shortly stated. The aggravated burglaries were both committed on 20 August 2021. There was a co-defendant, Julian Dumatey. The victims of the first burglary were Daniel Gilroy and Skye Stevenson. They were inside their flat in Westcliffe-on-Sea. At around 7pm Mr Gilroy received a call from Dumatey asking him to come downstairs and open the front door. The applicant was with him. When he opened the door Mr Gilroy was attacked. The applicant grabbed him round the throat and held a large knife to his neck. The knife was in its sheath but it was still a fearsome weapon. The applicant threatened to stab Mr Gilroy and cut his throat. The applicant demanded that he and Dumatey be taken upstairs.

Once inside the flat upstairs the applicant punched Mr Gilroy in the face. Dumatey told Gilroy he had to pay a debt of £150 failing which his partner, Skye Stevenson, would be stabbed. The applicant tried to hit Ms Stevenson in the face but missed. He then hit Mr Gilroy twice in the face causing his nose to bleed. The applicant switched on the electric kettle and threatened to scald Mr Gilroy with boiling water. Mr Gilroy agreed to pay the money which it was said he owed.

The applicant said that he and Dumatey were now going to cut and hurt the people next door. Before leaving the flat the applicant and Dumatey stole a house key, cigarettes, £40 in cash and Mr Gilroy's bank card.

The second aggravated burglary took place shortly afterwards the same evening at another flat in the same building where Sharon Small and her partner, Stephen Flynn, lived. Ms Small heard a knock on the door and a voice shouting "It's the Police". She recognised the voice as Dumatey's. The applicant and Dumatey forced their way into the flat by breaking the bottom panel of her door. They were carrying large knives, blades and sheaths. The applicant punched Mr Flynn three times in the face and then kicked him in the face. Dumatey also punched Mr Flynn in the face and struck him to the neck with the flat side of the blade which was still in its sheath. Ms Small was struck in the face and shoulder. Before leaving the flat the applicant and Dumatey stole Mr Flynn's iPhone, a bank card, cigarettes and the keys to a van. Ms Small's house keys and debit card were also stolen.

The applicant was arrested the following day, 22 August 2021. He gave a "no comment" interview.

The two offences of assault on an emergency worker had been committed on separate occasions several months earlier.

On 20 March 2021, the police were called to an address in Chartwell Esplanade at 1.50 am following reports of a disturbance. The applicant was present at the address. He was arrested on the strength of an allegation made by a woman who was present with him at the address although that allegation was later withdrawn. When the applicant was being escorted downstairs by the police he raised his leg and attempted to kick one of the officers in the back. He was arrested for assaulting an emergency worker and taken into custody. While in the cells at the police station he urinated on the floor. That was the offence of criminal damage.

Some 3 months later on 27 June 2021 the police attended the applicant's home to arrest him for an unrelated matter. As an officer took his wrist to arrest him the applicant punched the officer to the chin and the shoulder. The applicant was arrested for assault on an emergency worker and detained.

The applicant had a very bad record, 42 convictions for 102 offences. He had convictions for nine offences against the person and a history of assaulting police officers and people in positions of authority. He also had 31 offences of theft, fraud and kindred offences.

There was no pre-sentence report. The judge considered that it was unnecessary to obtain a report. One of the applicant's grounds of appeal is that the judge failed to obtain a report, although that was a complaint not made until 3 years later when the appeal was lodged.

The applicant had written a letter to the judge saying how deeply sorry he was to all the victims of his offences. He explained that for the 6 months leading up to the burglaries he was struggling with drug addiction and alcoholism, using crack cocaine on a daily basis. He had not sought the help or support he needed and things spiralled out of control. He spoke of his devotion to his two young sons. He spoke of the progress he had made in prison during the 7 months he had been on remand, helping other prisoners with reading and writing and being allowed to become a violence reduction representative which involved mediating prisoners in conflict with others to defuse violent situations in prison. There were prison documents to support this.

In her sentencing remarks the judge set out the facts of the offences in some detail. She had also watched in court during the prosecution opening CCTV footage outside the flat shortly before the burglaries took place in which the knife could clearly be seen. The judge referred to the letter the applicant had written and to his certificates and noted that he had been making good use of his time in prison.

The judge turned to the relevant Sentencing Council guideline for aggravated burglary. There was no dispute that both burglaries were category 1A offences, each with a starting point of 10 years and a range of up to 13 years' custody. The judge said that after trial the sentence for the two burglaries together would have been 12 years. The applicant was afforded full credit of one-third for his early guilty pleas, reducing the custodial term to 8 years, with an additional 2 months to reflect the assaults.

The judge had made it clear during the course of counsel's submissions in mitigation that she had very much in mind the issue of whether the applicant met the threshold of “dangerousness” required for the imposition of an extended sentence. In her sentencing remarks she said that because of the facts of the current offences, and because of his previous record and the attitude shown towards the police, she was satisfied that the criteria for dangerousnesswere made out and that an extended sentence was justified.

For each of the aggravated burglaries the judge imposed a concurrent extended sentence of 8 years 2 months, with an extended licence period of 5 years.

Because the applicant has waived privilege we know that counsel who represented him in the court below advised that there were no grounds for an appeal against sentence. In relation to the finding of dangerousness,counsel advised, correctly, that it was open to the judge to draw that conclusion from the evidence presented and the judge was best placed to make that determination. Counsel's advice was that there was nothing in the facts of the case or the applicant's history to suggest that the judge erred in her decision to find the applicant dangerous. It is apparent from counsel's response following waiver of privilege, that at that stage the applicant indicated he was not going to pursue an appeal.

In his grounds of appeal and covering letter the applicant makes it clear that he only challenges the finding of dangerousnessand the passing of an extended sentence. In support of his proposed appeal he seeks to rely on psychiatric evidence which was not available to the court at the time of sentence. He says that as well as refusing to order a pre-sentence report, "…the judge dismissed my barrister when stating mental health issues and psychiatric assessment". The applicant complains that his case was rushed through the court system within a matter of only 36 days. He says that he has now been diagnosed with neurodiversity ADHD which goes a long way to explaining his impulsive behaviour. He relies on a mental health assessment completed by a psychiatrist, Dr Martyn, at HMP Highpoint in 2024. He says he has now received the correct support and medication.

The applicant seeks to explain the long delay in lodging his appeal. He says that it took 26 months to obtain copies of his relevant medical records through the prison system. He says he was diagnosed with mental health issues in January 2024 but did not know how to appeal, having been unable to obtain advice from solicitors. He had been waiting for medication and documents.

We have looked at the medical records the applicant has submitted. They derive from entries made by Dr Daniel Martyn dated 29 January 2024. Dr Martyn took a very full history from the applicant. He noted that the applicant had been in care from the age of 8 and reported over 50 different placements; he had kept running away. The applicant claimed to have spent over 12 to 15 years in prison throughout his career, maybe more. He had a history of abusing cocaine and alcohol.

Dr Martyn assessed the applicant by reference to the ADHD checklist, noting that the applicant "…seemed interested in buying into adult ADHD ideas". Dr Martyn's impression was that there were dissocial elements in the applicant's personality. There had been a very harmful use of, or dependency on, illicit stimulants such as cocaine, and harmful use of alcohol. The applicant currently met the criteria for combined adult ADHD. Dr Martyn's plan was to give advice on an ADHD diagnosis and treatment options including medication.

The applicant suggests in his grounds of appeal that he had been told by Dr Martyn that if he had been treated for his ADHD at the time of the offence, it was unlikely he would have committed those offences. We can see nothing in Dr Martyn's notes to support that assertion.

There is a proforma letter from Dr Martyn to his patients in the prison explaining that there was a national shortage of all adult ADHD medication which meant that no new patients were being prescribed such medication until supplies returned to normal. We note that the applicant has endorsed that letter, indicating that on 13 August 2024 he received his first course of medication which was intended to help with brain activity and to improve his attention and concentration and make him less impulsive. The note concludes: "I am finally receiving the treatment I need".

Although there is no formal report or statement from Dr Martyn, the applicant has lodged a Form W application for a witness order to call Dr Martyn to give evidence.

Like the single judge, we have considered very carefully all the applicant's submissions and applications.

We consider, first, the ground of appeal that a pre-sentence report should have been obtained before the judge made a finding of dangerousnessandimposed an extended sentence. Section 280(2) of the Sentencing Act 2020 provides that in relation to forming the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences (the statutory test of dangerousness),the court must obtain and consider a pre-sentence report before forming such an opinion unless, in the circumstances of the case, the court considers that it is unnecessary to obtain a pre-sentence report : see section 30(2) of the Act.However, section 30(4) provides that where a court does not obtain and consider such a pre-sentence report, no custodial sentence is invalidated by the fact that it did not do so.

We note that in his advice on appeal dated 26 October 2021, counsel who had represented the applicant at the sentencing hearing made no mention of the absence of a pre-sentence report, still less did he make any criticism of the judge for failing to obtain such a report. In the transcript of the prosecution opening and the judge's sentencing remarks there is no mention of obtaining or not obtaining a pre-sentence report, but from the tenor of the judge's observations it is plain that she considered it unnecessary to obtain a pre-sentence report. She must have considered that she had sufficient information from which to assess whether the applicant was "dangerous", and whether an extended sentence was necessary for the protection of the public.

We have also considered whether this Court ought itself to obtain a pre-sentence report. Sections 23(1) and (2) of the Sentencing Act 2020 provide that any court on an appeal against a custodial sentence must obtain a pre-sentence report if none was obtained by the court below, unless the appeal court considers that the court below was justified in not obtaining a pre-sentence report, or that in the circumstances of the case at the time it is before the appeal court, it is unnecessary to obtain a pre-sentence report. We do not consider it necessary for us to obtain such a report in order to deal with the applications before us.

As this court observed in R v Allen [2019] EWCA Crim 1772, at [17]:

We note that in that case the defendant, aged 22, had received an extended sentence of 16 years comprising a custodial term of 13 years and an extended period of licence of 3 years. The principal offence was section 18 wounding with intent. There were other offences as well but he had only one relevant previous conviction for violence, for affray. For that reason it was clearly a very different case from this case.

In the circumstances of the present case, we consider that the judge was justified in not obtaining a pre-sentence report.

As for the application to adduce fresh evidence from the psychiatrist, Dr Martyn, the requirements of section 23 of the Criminal Appeal Act 1968 apply just as much to a sentence appeal as to a conviction appeal. Before receiving fresh evidence this Court would have to have regard to: whether the evidence appears capable of belief; whether it appears that the evidence may afford any ground for allowing the appeal; whether the evidence would have been admissible in the proceedings in the court below; and whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

We have no report from Dr Martyn, only his notes. We have no opinion from him, for example, as to whether the diagnosis of ADHD which has been made since the sentence was imposed could have impacted upon the assessment of the applicant's culpability for the offences in question, or could have affected the assessment of whether there was a significant risk of serious harm to the public from further specified offences committed by the applicant. Only if we were persuaded that there was evidence from Dr Martyn which could have affected those assessments by the judge could it be said that such evidence would be capable of affording any ground for allowing the appeal.

We agree with the careful analysis by the single judge in his reasons for refusing leave to appeal and the necessary extension of time. The single judge said:

We respectfully agree with that analysis. We are therefore satisfied that there is no arguable merit in the proposed appeal.

We understand the applicant's anxiety to place before this Court evidence that a long-standing problem of ADHD is now being addressed by medication and treatment. That positive development may be of assistance to the Parole Board in due course when it comes to consider at what stage the applicant should be released on licence under this extended sentence.

However, for the reasons we have explained it affords no arguable ground of appeal and leave to appeal is refused. As there is no merit in the proposed appeal, we also refuse the extension of time.