Patrick Anthony Purcell v R
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON,Mr Justice Maddison,MR JUSTICE MADDISON,Lord Justice Pill |
| Judgment Date | 29 April 2008 |
| Neutral Citation | [2008] EWCA Crim 894,[2008] EWCA Crim 448 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 April 2008 |
| Docket Number | Case No: 200705140 A3,No. 2007/05140/A3 |
[2008] EWCA Crim 448
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Dyson
Mr Justice Collins and
Mr Justice Maddison
No. 2007/05140/A3
Mr D Harounoff appeared on behalf of the Applicant
Wednesday 20 February 2008
I will ask Mr Justice Maddison to give the judgment of the court.
On 27 March 2007, at the Crown Court at Croydon, the applicant, Patrick Anthony Purcell, pleaded guilty to an offence of robbery. On 14 August 2007, at the Crown Court at Woolwich, before His Honour Judge Norris, he pleaded guilty on re-arraignment to an offence of sexual assault. He was then sentenced in relation to the robbery to imprisonment for public protection with a specified period of five years and six months (less 201 days that he had spent on remand in custody). For the sexual assault he was made the subject of a seven month concurrent sentence.
Although we have not invited argument on the point, our provisional view is that if the judge was right to conclude that the applicant was a dangerous offender, then there ought also to have been a sentence of imprisonment for public protection in relation to the sexual assault.
The case comes before us today by way of a renewed application for leave to appeal against sentence following refusal by the single judge.
In brief, two points are made by Mr Harounoff on behalf of the applicant. The first is that it was wrong in principle to impose a sentence of imprisonment for public protection so far as the robbery was concerned. The second point is that, whether or not that first submission is correct, the judge's minimum period of five years and six months was based on a starting point of fifteen years which was, it is submitted, significantly too high.
We consider that there is sufficient merit in each of those arguments to warrant our granting leave to appeal in this case. In the circumstances it is unnecessary to go into any detail. Suffice it to say that, so far as the first point is concerned, amongst the submissions made is one that, however grave the offence was, it was a “one-off” offence, not illustrating any pattern of offending. Moreover, the pre-sentence report did not suggest that an indeterminate sentence was necessary or appropriate. Indeed, when he passed sentence, the judge did not clearly express the reasons for his conclusion that an indeterminate sentence was appropriate. In that regard counsel relies upon the judgment of this court in R v McCormack [2007] EWCA Crim 2223, in the penultimate paragraph of which this court stressed the importance of careful consideration of the reasons for an indeterminate sentence and a careful explanation of those reasons.
In relation to the second of the two proposed grounds of appeal, although the Sentencing Guidelines Council's Definitive Guideline on robbery at page 15 suggests that a range of thirteen to sixteen years might be appropriate in a case such as this, Mr Harounoff has referred us to a number of authorities, some old, but some more recent, which he submits point to an appropriate starting point of between nine and ten years. These authorities are summarised in a lengthy Advice on Appeal which, regrettably, we have only seen for the first time today and have not had the opportunity of considering in detail.
In those circumstances, therefore, we grant leave to appeal. We direct that the report in relation to drug rehabilitation, referred to in paragraph 12 of counsel's Advice on Appeal, be provided to each member of the court on the hearing of the appeal. We also direct an up-to-date report from the prison at which the appellant (as he now is) is serving his sentence. That report will deal with the appellant's progress and behaviour in general terms, and specifically with the efforts which he is making to overcome his problem in relation to drugs which underlay the instant offence and which seems to us to present a general cause for concern in his case.
Do you need a representation order?
MR HAROUNOFF: No, my Lord.
You do not?
MR HAROUNOFF: No.
Very well. I am going to pass back to you the one and only copy of the Advice on Appeal. Thank you very much.
[2008] EWCA Crim 894
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
HIS HONOUR JUDGE NORRIS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Mr Justice Blair
Sir Richard Curtis
Case No: 200705140 A3
T20077141
Mr David Harounoff (instructed by Cook Taylor) for the Appellant
Hearing date : 10 April 2008
Having pleaded guilty to one of the offences at an earlier hearing and another on re-arraignment on 14 August 2007, Patrick Anthony Purcell was sentenced at the Crown Court at Woolwich, before His Honour Judge Norris, to terms of imprisonment. For an offence of sexual assault contrary to Section 3 of the Sexual Offences Act 2003 he was sentenced to imprisonment for public protection. On a charge of robbery he was also sentenced to imprisonment for public protection. A period of 5 1/2 years less 201 days spent on remand was specified as the minimum term to be served. Ancillary orders were made on the sexual offence.
Purcell appeals against sentence by leave of the full court.
On 14 July 2006, a 16 year old girl went with her mother to visit relatives at a caravan park in Greenwich. The appellant's wife asked her to make a cup of tea and take it to the appellant in his caravan. He engaged her in general conversation and asked for her telephone number. When he started to undo his trousers she turned to leave the caravan. He took hold of her and started to kiss her. He squeezed her breasts over her shirt, threatened her and told her not to tell anyone.
On their way home, the girl told her mother what had happened and the police were contacted. The appellant made angry telephone calls to her mother. He was arrested the following day and, at interview, denied committing the offence.
At about midday on 18 December 2006, an 83 year old widow went to her front door when the doorbell rang. She opened the door slightly and the appellant pushed the door open with great force which knocked her over. He entered the house. She tried to escape but was dragged back inside. She was punched in the face at least 6 times, causing her to bleed heavily and leaving her face battered and bruised. The appellant abused her verbally and said: “If I don't get any money, I will kill you”.
The appellant put on gloves and forced the victim's hand behind her back thereby breaking her wrist. He took her to the bedroom and threw her on the bed. Having locked them both in the room, the appellant searched the room for money and left with £1,500 in cash. He was identified by DNA and, on arrest, declined to comment. The victim subsequently identified him as the robber.
Sentencing the appellant, the judge described both offences as serious and the second as a house robbery of the most appalling kind. On its own, the sexual offence required a custodial sentence.
The robbery was committed while on bail and was, the judge said: “An attack of the most cowardly, cruel and brutal kind. She [the victim] was a vulnerable elderly lady, a widow”. The judge indicated that he would allow 20% discount for guilty plea on the sexual offence and 25% on the robbery.
Having correctly applied the statutory provisions, the judge stated that the appellant was to be regarded as a dangerous offender. He would make the sentences concurrent. Having regard to the Sentencing Council Guidelines and to decided cases, the total discounted determinate sentence would have been one of 11 years, giving a minimum period in custody of 5 1/2 years.
The victim's daughter informed the court of the serious effect of the robbery on the victim and her family. Her face is scarred and her wrist still very weak. Having been confident and independent, she is now very nervous and irritable and her activities are severely restricted even within the home. She has panic attacks and strongly dislikes being left alone so that the effect on other members of her family has been substantial.
The appellant is 38 years old and has a bad record. In 1997 he was sentenced to a term of imprisonment in the Republic of Ireland for an offence of rape of a 16 year old girl. Since he has been in this jurisdiction, the appellant has convictions for burglary of a dwelling house with intent to steal, theft, carrying offensive weapons, possession of Class A and B drugs, aggravated vehicle taking, handling stolen goods and driving while disqualified. Short sentences of imprisonment have been imposed on him. The judge noted that some remorse had been shown. We bear in mind also that there is no evidence to suggest that the victim's house was targeted because of her age though the appellant was undoubtedly planning to enter and steal from dwelling houses and entered this one having observed that the occupant was elderly.
On behalf of the appellant, Mr Harounoff submits...
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Attorney General's Reference (No. 55 of 2009); R v Shirley (John)
...chair, this court thought that a sentence of about seven and a half years after trial was appropriate. 16 That needs to be read alongside R v Purcell [2009] 1 Cr App R (S) 21 at 113, which is rather nearer the present case. There a sentence in that case of imprisonment for public protection......
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R v Roe
...one in which the violence was negligible. At the upper end of the scale are cases such as O'Driscoll itself, cases such as Purcell [2008] EWCA Crim. 894 and, strikingly, only two days ago, cases such as Morris and Long decided by this court differently constituted on 16th February 2010. In ......
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Attorney General's Reference 124 of 2008 (John Doran)
...considered for particular factors to something of the order of eight to eight-and-a-half. We should record that that case referred also to R v Purcell [2008] EWCA Crim. 894. That was a case of a much more serious kind. An 80-year-old widow who was knocked over, punched a number of times and......
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R v Robert Ziga
...is helpful reference to an earlier decision in Attorney General's Reference No 48 of 2000 (Johnson) [2011] Cr App R (S) 121; Purcell [2008] EWCA Crim 894; Attorney General's Reference No 124 of 2008 (Doran) [2009] 2 Cr App R (S) 29; Attorney General's Reference No 72 of 2008 (Ming) [2009] E......