IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT MERTHYR TYDFIL HHJ REES CP Nos: 62CL004824 62CL0610124 CASE NO 202501158/A3 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE STUART-SMITH
MS JUSTICE NORTON DBE
THE RECORDER OF NORTHAMPTON
HIS HONOUR JUDGE MAYO
(Sitting as a Judge of the CACD)
REX
V
ADAM REED
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MISS E JERMIN appeared on behalf of the Applicant
MR J BROWN appeared on behalf of the Crown
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J U D G M E N T
MS JUSTICE NORTON: On various dates between 30 August 2024 and 16 January 2025 at the Crown Court sitting at Merthyr Tydfil, the applicant pleaded guilty to a series of offences, all of which took place between 22 November 2023 and 11 July 2024 at HMP Parc where the appellant was a serving prisoner at the relevant times. Those offences were as follows: assault occasioning actual bodily harm and assault of emergency worker on 22 November 2023; false imprisonment on 17 December 2023; assault of an emergency worker on 16 January 2024 and making a threat to kill on 11 July 2024.
On 6 March 2025 the applicant was sentenced to a nine-year extended sentence, comprising a seven-year custodial term and a two-year extended licence period. The application for leave to appeal against sentence has been referred to the full court by the Registrar. We grant leave.
A number of issues arise on this application which can be summarised as follows. First, whether the imposition of an extended sentence was wrong in law. Secondly, whether the judge wrongly categorised the assault occasioning actual bodily harm resulting in a higher starting point than was merited for that offence. Thirdly, whether the sentence as passed or intended was, in any event, manifestly excessive.
The facts
On 22 November prison officers Parry and Edwards had cause to enter the applicant's cell at HMP Parc. When they entered the cell they could smell a synthetic cannabinoid, commonly known as 'Spice'. The applicant was on his bed and it was suspected that he had been smoking this synthetic drug from an improvised pipe. The officers asked him to hand over the pipe. The applicant refused to do so, became angry and verbally abusive and repeatedly told the officers to "Get out of my fucking cell".
Mr Parry reached out to take the pipe from the applicant who then headbutted Mr Parry to the face and punched him in the head. The officers tried to take control of the situation by pushing the applicant back onto the bed but he continued to fight them both, throwing punches and kicking out with his legs and feet. Other prisoners entered the cell and were able to calm the applicant down and summons help, enabling the two officers to leave.
Officer Edwards sustained some pain and reddening where she was hit but did not require any medical attention. Officer Parry sustained a perforated eardrum with consequent temporary loss of hearing. He did not require medical treatment and made a full recovery.
On 17 December 2023 Michael Crofts, who was the applicant's cell mate at the time, returned to their cell having collected some food. The applicant, who had been arguing with other inmates and whose behaviour was volatile, turned on Mr Crofts and began threatening him. In an aggressive tone he instructed Mr Crofts to get down on his hands and knees otherwise he would cut him. Fearful that the applicant might have a weapon, Mr Crofts did as instructed and knelt down by the side of the bed. The applicant told him to put his hands behind his back. Mr Crofts complied and the applicant then tied his wrists together using shoelaces. Having restrained Mr Crofts in this way the applicant struck him in the head and ribs. Mr Crofts shouted for help but it took around 20 minutes for a member of staff to come to the cell. When staff arrived they saw Mr Crofts, who was upset and appeared to be in pain, being hit by the applicant who appeared to be intoxicated. Officers believed he had been smoking 'Spice'. The staff instructed Mr Reed to untie his cell mate. He refused to do so and continued to assault Mr Crofts. Prison staff who treated the incident as a hostage situation spent some time talking to the applicant to calm him down and encouraged him to let his victim go. Eventually the applicant did so. He untied Mr Crofts and allowed him to leave the cell.
Mr Crofts did not require medical attention. However in a victim personal statement he described how, during the incident, he had thought he was going to die and since the incident he had suffered nightmares and pre-existing symptoms of anxiety and depression had worsened.
On 16 January 2024 the applicant became involved in another altercation with a member of prison staff. On this occasion he became angry and abusive when told by Prison Officer Scarf to move back in a queue of prisoners who were waiting for their medication to be dispensed. Because of his volatile behaviour a decision was made to return the applicant to his cell. Before staff were able to put this into effect, the applicant threw a cup at Officer Scarf and then ran at him with force and punched him in the face causing bruising, swelling and a cut above the officer's eyebrow.
The final offence took place on 11 July 2024. Tara jones, a prison probation officer went to speak to the applicant in relation to his release date. She and a colleague attended his cell and there was a discussion regarding licence conditions. During that discussion the applicant referred to Officer Scarf whom he had previously assaulted. He appeared to be under the impression that Mr Scarf was attending the wing to antagonise him and made a threat stating that if Mr Scarf came onto the wing again he would "put a blade to his throat". He also said if Mr Scarf had a problem with him he should come to his cell and sort it out.
Antecedents
The applicant was aged 26 at the date of sentence. He had eight convictions for 11 offences spanning from 2019 to 2023. In 2019 he was fined for using threatening behaviour and sentenced to a community order for common assault. In 2022 he was sentenced to a community order for threatening behaviour and possessing an offensive weapon. He was sentenced for breach of court orders in 2022 and 2023 and in June of 2023 was sentenced to 30 months' imprisonment for engaging in coercive behaviour and two offences of harassment. Finally, in November 2023 he was sentenced to 26 weeks' imprisonment for assault by beating of an emergency worker.
Pre-sentence report
A pre-sentence report dated 12 February 2025 was available to the court. It was noted that the series of offences for which he fell to be sentenced followed an established pattern linked to violent behaviours. Although there were signs that he had begun to address his thinking whilst in custody and that at the time of the report he had enhanced prisoner status, nevertheless it was the view of the author of the report that the applicant would "continue to pose an ongoing significant risk of committing an offence causing serious harm to others he may be in conflict with or those who displease him" and that at the time of his offending he was only concerned with his own needs and wants regardless of the circumstances and the impact his behaviour would have upon the victims. The pre-sentence report continued:
"He poses a very high risk of harm; his negligible responsibility taking and his clear disregard of the harm his offending inflicts on the victims at the time causes me to conclude that the risk of him committing further similar offences is ongoing and significant rehabilitative measures are needed to address such matters.
With regards to dangerousness, it is evident that Mr Reed has engaged in significantly violent behaviour in closed conditions, within prison settings, which evidences that even external boundaries and controls have been ineffective in containing the risk of harm he poses, and the risk of harm by the defendant is equally proving difficult to be managed in the community and prison settings. The Court may therefore conclude that Mr Reed does pose a significant risk of serious harm and that there is high likelihood of similar offending occurring in the future. The Court may therefore consider imposing an Extended sentence to ensure public protection."
It goes on:
"Having carefully considered the case, I must conclude that there is an imminent, very high risk of serious harm to future victims such as staff, general public, ex-partners, future partners and other prisoners. The potential seriously harmful event is more likely than not to happen imminently, and the impact would be serious and enduring."
The sentence
The applicant was sentenced for the individual offences as follows. For the assault occasioning actual bodily harm there was no dispute that this was culpability A. However there was disagreement between the parties about the level of harm caused (a perforated eardrum with temporary loss of hearing in that ear). The judge found that the harm fell into the highest category of seriousness and therefore categorised this offence as A1 on the sentencing guidelines with a starting point of 30 months.
The judge then increased the sentence from the starting point to three years due to the aggravating factor of the applicant's previous convictions and the circumstances in which the offence took place, before reducing the sentence by 25 per cent for the applicant's guilty plea at the pre-trial preparation hearing to reach a sentence of two years and three months.
At the relevant time there were no sentencing guidelines for the offence of false imprisonment. The judge was therefore referred to the cases of R v Bird [2014] EWCA Crim. 389 and R v Needham [2022] EWCA Crim 545 and in particular to the factors set out at paragraph 20 of that latter judgment.
The judge took into account the circumstances of the detention, the fact that this was a hostage-like situation, the use of restraints and the extent of the violence used upon the victim. Allowing a reduction of 25 per cent for his guilty plea at the plea and trial preparation hearing the judge arrived at a sentence of three years and nine months.
In so far as the threats to kill were concerned, the prosecution submitted that this was a Category A3 offence on the relevant sentencing guidelines that had a starting point of 12 months' imprisonment. This was the sentence that the judge passed. He stated that he had allowed the applicant 25 per cent credit for his guilty plea and would have passed a sentence therefore of 16 months after trial.
Sentences of four months' imprisonment were imposed for each of the two offences of assaulting an emergency worker.
As the offences of assault occasioning actual bodily harm, false imprisonment and threats to kill are all specified offences for the purposes of section 279 of the Sentencing Code 2020, the judge then considered whether the applicant met the test for dangerousness (whether the applicant posed a significant risk of serious harm to members of the public by the commission of further specified offences) and, if so, whether it would be appropriate to pass an extended sentence upon him.
Having referred to the pre-sentence report, the judge found that there was such a risk and that the test for dangerousness was satisfied. He then set out the sentences for the individual offences as already detailed, which he directed should be served as follows. He made the sentences for the assault occasioning actual bodily harm, false imprisonment and threats to kill consecutive to each other. The sentences for the offences of assaulting an emergency worker were each ordered to run concurrently. The total custodial sentence passed was therefore one of seven years' imprisonment.
The judge concluded his sentencing remarks as follows:
"The total sentence is one of 84 months' imprisonment, that is 7 years. There will be an extended licence period of 2 years. The sentence is to be expressed as an extended determinate sentence of 9 years, with a custodial element of 7 years and an extended licence period of 2 years, making a total sentence of 9 years."
Issue 1: Lawfulness of the extended sentence
An extended sentence is defined in section 279 of the Sentencing Code 2020 as a sentence of imprisonment the term of which is equal to the aggregate of the "appropriate custodial term" and a further period for which the offender is to be subject to a licence.
Section 280 identifies the circumstances in which an extended sentence will be available. The relevant provisions are as follows:
An extended sentence of imprisonment is available in respect of an offence where—
the offence is a specified offence (see section 306(1))
the offender is aged 21 or over when convicted of the offence
the court is of 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 (see section 308)
the court is not required ... to impose a sentence of imprisonment for life
the earlier offence condition or the 4 year term condition is met
(2)…
the earlier offence condition is that when the offence was committed the offender had been convicted of an offence listed in Parts 1, 2 or 3 of schedule 14
the four year term condition is that if the court were to impose an e extended sentence of imprisonment the term that it would specify as the appropriate custodial term would be at least four years.”
The appropriate custodial term is defined in section 281 as:
"The appropriate custodial term is the term of imprisonment that would be imposed in respect of the offence in compliance with section 231(2) (length of discretionary custodial sentences: general provision) if the court did not impose an extended sentence of imprisonment."
Section 231(2) provides:
"The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of—
the offence, or
the combination of the offence and one or more offences associated with it."
Section 400 of the Code states that so far as material for the purposes of the Sentencing Code an offence is associated with another if (a) the offender (i) is convicted of it in the proceedings in which the offender is convicted of the other offence.
Applying the provisions of section 280 to the current case, as previously noted, the offences of assault occasioning actual bodily harm, false imprisonment and making a threat to kill are all specified offences. The applicant was over 21 at the date of conviction. It is not disputed that the judge was entitled to reach the opinion, as he clearly did, that there was "a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences". The court was not required to impose a sentence of imprisonment for life. It follows therefore that the requirements set out in section 280(1)(a) through to (d) were satisfied in respect of those three offences.
However, in so far as section 280(1)(e) is concerned, it is common ground that the earlier offence condition is not met as none of the applicant's previous convictions were for specified offences listed in schedule 14 of the Act. Whether an extended sentence could be passed at all therefore depends upon whether the four-year term condition is met.
It is agreed that as the sentence is presently constructed that condition is not met. This is because the four-year term must be a single term of imprisonment imposed for a specified offence. In the present case no single term of imprisonment reached the four-year minimum term. Neither can the four-year term be achieved, as the judge in this case sought to do, by adding together individual sentences each of which are for a term of less than four years but then make them consecutive in order to reach a total sentence of four years or more. That this is so is made clear in R v Pinnell and Joyce [2010] EWCA Crim 2848 in which, in respect of the four-year term condition required under section 227(2)(b) of the Criminal Justice Act 2003 (which was the relevant legislative provision at the time), it was stated at paragraph 22:
"The appropriate custodial term in relation to each extended sentence must be at least four years. Separate consecutive sentences each shorter than four years cannot be extended even if their total is more than four years."
Similarly, at paragraph 36 where the court stated:
"It is not possible by passing shorter consecutive sentences to constitute a single custodial term of four years to qualify for an extended sentence under section 227(2)(b)."
Pinnell was followed in R v GG [2013] EWCA Crim 1302. In that case the sentencing judge, having found that the applicant was dangerous, imposed an extended sentence pursuant to section 226A of the Criminal Justice Act 2003, comprising a custodial term of four years and an extension period of eight years. The custodial term was made up of consecutive sentences imposed for the individual offences. On appeal, the court stated that:
[My Lady, my apologies but I cannot seem to get access to this judgment to check the following quote, I think it may be restricted access]
"Pursuant to section 226A(1)(d) one or more of two conditions, termed condition A and B, must be met ... Condition B is that there must be an appropriate custodial term of at least four years. The interpretation of condition B which has been adumbrated by this court and indeed accepted by all is that the appropriate custodial term of four years must be a single term of imprisonment of four years, not the aggregate of successive sentences which have been ordered to be served consecutively. The relevant decision of this court is R v Pinnell and Joyce [2010] EWCA Crim 2848. Therefore this sentence was in breach of the statute because here the four year term was made up of such separate consecutive sentences rather than by a single term."
The requirement that the minimum four-year custodial term must attach to a single specified offence was re-affirmed more recently in R v Camara [2022] EWCA Crim 542.
As stated, in the present case no single sentence passed by the judge reached the minimum four year term. An extended sentence was therefore not available to the judge as the sentence is presently constructed.
Although it is impermissible to aggregate consecutive sentences to reach the necessary four-year term, in accordance with normal sentencing principles and sections 231(2) and 400 of the Sentencing Code, it is entirely permissible for a judge to aggregate the offending by passing a single sentence on one offence that, subject to the statutory maximum, exceeds the term that would be appropriate for that single offence when considered alone but which appropriately reflects the totality of the offending. Again, as was stated in Pinnell at paragraph 47:
"If no one offence would justify a four year custodial term on ordinary principles, the seriousness of the aggregate offending must be considered. If a four year custodial term results from aggregating the shortest terms commensurate with the seriousness of each offence, then that four year term can be imposed in relation to the specified offence."
Camara confirmed this, concluding at paragraph 37:
"Pinnell/Joyce remains good law. The court when arriving at the appropriate custodial term can aggregate with a specified offence non-specified associated offences so as to reflect the defendant's overall offending, subject always to the custodial term imposed on the specified offence not exceeding the statutory maximum and not infringing the principle of totality."
In this case, Miss Jermin, to whom we are grateful for her forceful and succinct submissions does not seek to argue that the appellant is not a dangerous offender. She is right not to do so. Having considered for ourselves the circumstances of the applicant's previous and index offending and taking into account the detailed pre-sentence report, we have no doubt that the judge was entirely correct to find that the appellant was dangerous and that an extended sentence of imprisonment was necessary to meet the risk that he presents. All are agreed, however, as are we, that as presently constructed the extended sentence is wrong in law as neither the earlier offence condition nor the four-year requirement was engaged. The sentence will therefore have to be restructured. We will return to this after considering the remaining grounds of appeal to which we now turn.
Issue 2: The sentence on assault occasioning actual bodily harm
In their sentencing note in the lower court and in oral submissions to the judge, the prosecution submitted that the assault upon Officer Parry in which he sustained a perforated eardrum should be categorised as A1 on the sentencing guidelines which has a starting point of two years and six months. There was and is no dispute about the level of culpability. However, the defence argued both at first instance and again before us that the injury sustained by Officer Parry was not of the highest level of seriousness and that the correct category for this offence was A2 which has a starting point of one year and six months.
The medical records for Officer Parry were unfortunately only uploaded to the Digital Case System on the morning of the sentence hearing. Those records confirm that officer Parry had noticed hearing loss on his left side and that on examination a "small perforation to the left eardrum" was noted. Officer Parry was reassured that his hearing would improve as the perforation healed. He had no other injuries and no treatment was required. It was confirmed orally at the sentencing hearing that the hearing loss had been temporary and that he had made a full recovery.
We agree with Miss Jermin that this injury, unpleasant and worrying although undoubtedly it would have been for Officer Parry is not of the level of seriousness that would justify the highest category of harm on the sentencing guidelines. We agree that this offence should have been categorised as A2 on those guidelines.
Adjusting the sentence upwards from the starting point to reflect the aggravating factors that the victim of the offences was working in the public sector and that the offence was committed in prison, and taking into account also the applicant's previous convictions, but then allowing a 25 per cent reduction for his guilty plea, in our judgment the appropriate sentence for this offence would have been one of 18 months.
Issue 3: Whether the sentence was manifestly excessive
Save for the miscategorisation of the assault occasioning actual bodily harm, Miss Jermin does not take issue with any of the individual sentences passed by the sentencing judge. Neither does she seek to argue that had an extended sentence not been passed consecutive sentences would have been appropriate given that the judge was sentencing the appellant for offences that occurred on four separate occasions and in respect of different victims. However, she submits that, first, the judge failed to afford any or any significant reduction on sentence for the mitigation advanced, and secondly, that he failed to consider totality and make an adequate downward adjustment to sentence for that sentence to be a fair and proportionate one.
In so far as mitigation is concerned, there was in our judgment little that could properly be advanced on the applicant's behalf. Whilst the pre-sentence report sets out unresolved matters in the applicant's background, which it was said had affected his emotional wellbeing and maladjusted coping responses, it is clear that the judge took those matters into account in so far as he was able to do so. But as he stated in his sentencing remarks, whilst they may have provided some explanation for the applicant's unpredictable and explosive temper, they did not justify his actions. The judge recognised and noted that the applicant loved his children, that he had acknowledged that "things cannot carry on like this" and that some progress had been made with his thinking behaviours. But there was little, if any, real substance that was available by way of mitigation which was in any event far outweighed by the aggravating factors, principally the applicant's previous conviction, the repeat offending and the prison environment in which all offending took place against public sector workers. The most significant factor in mitigation was in truth the applicant's guilty pleas for which the judge made appropriate reductions to sentence.
In so far as totality and the overall sentence length is concerned, with the exception of the sentence passed for the assault occasioning actual bodily harm which we agree was wrongly categorised for the reasons given, in our view the sentences passed for each of the other offences were, considered individually, entirely justified and Miss Jermin does not suggest otherwise. Indeed she submits that in particular with regard to the sentence of three years and nine months for the false imprisonment, the sentence were carefully considered and appropriate in accordance with the guidance. Further, had it not been for the imposition of an extended sentence, consecutive sentences would have been appropriate. However, the final sentence figure achieved must not only be reflective of all of the offending behaviour taking account of any relevant aggravating and mitigating factors, but must be "just and proportionate" to the offending as a whole. As is made clear in the sentencing council's over-arching guideline on totality: "It is usually impossible to arrive at a just and proportionate sentence simply by adding together notional single sentences. Ordinarily some downward adjustment is required."
In this case it is clear from his sentencing remarks that the judge did have totality in mind. First, he directed that the sentences of four months' imprisonment imposed for each of the offences of assault on an emergency worker should run concurrently with all other sentences. Secondly, he stated that he had reduced the sentence that he would otherwise have passed for making a threat to kill to 12 months after credit of 25 per cent for the guilty plea. We note that although the judge did not state which category in the guidelines he found this offence to come within, the prosecution submitted that this was a Category A3 offence with a starting point of 12 months. The judge made clear that after trial he would have passed a sentence of 16 months for this offence. Other than the appropriate reduction for plea, as Miss Jermin has pointed out to us, it is unclear how or to what extent he reduced the sentence for this particular offence to reflect totality.
This court has carefully and anxiously considered whether or not the total custodial sentence of seven years passed at the lower court was a "just and proportionate" sentence. These were a series of violent offences carried out against multiple different victims over a period of several months and in a prison environment. The individual offences each merited sentences of imprisonment and collectively deserved a lengthy custodial sentence. However, we note that with one exception the applicant pleaded guilty to all offences at the pretrial preparation hearing stage. A sentence after plea of seven years is therefore equivalent to a sentence after trial in excess of nine years' imprisonment. Serious though this series of violent offending was, stepping back we have concluded that such a length of sentence was manifestly excessive. In our judgment the correct overall custodial term should have been one of five years' imprisonment.
We return then to how the sentence should be constructed. We agree with Mr Brown, to whom we are grateful for his submissions, that the appropriate way in which to correct the sentence is to treat the false imprisonment as the lead offence. On that count we will substitute the sentence of five years' imprisonment for the sentence imposed at that lower court on that count of three years and nine months and all other sentences will run concurrently with that sentence.
Conclusion
We quash the sentence of 27 months imposed for the assault occasioning actual bodily harm and substitute for it a sentence of 18 months' imprisonment. We quash the sentence of three years nine months imposed for the false imprisonment and substitute for it a sentence of five years' imprisonment. All other individual sentences will remain unaltered. We direct that all sentences will run concurrently with that sentence of five years' imprisonment imposed for the offence of false imprisonment, making a total custodial term of five years.
We are satisfied that the appellant is a dangerous offender and that an extended sentence is necessary to manage the significant risk that he presents of causing serious harm by the commission of further specified offences. We are further satisfied that the judge correctly decided in his discretion that two years was the appropriate period of extended licence. We quash the nine-year extended sentence and substitute therefore a seven-year extended sentence comprised of a custodial element of five years made up as we have ordered, together with a two-year extended licence period. The applicant will serve two-thirds of the five-year custodial term (that is 40 months) before he is eligible for consideration of release by the Parole Board. If not released he will remain in custody until the expiration of the five-year custodial term. Once he is released he will serve on licence any part of the custodial period which remains and will then be subject to an extended licence for a further two years.
We remind the applicant that if when subject to licence he commits another offence or fails to comply with the terms of his release he is liable to be recalled and may serve the entire sentence in custody.
To this extent the appeal is allowed.
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