R v Ashes (Stephen Kenny)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF,LADY JUSTICE HALLETT,Mr Justice Silber |
| Judgment Date | 24 July 2007 |
| Neutral Citation | [2007] EWCA Crim 1053,[2007] EWCA Crim 1848,[2007] EWCA Crim 1650 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 July 2007 |
| Docket Number | No: 2007/0109/A1,Case No: 0700109A1 |
[2007] EWCA Crim 1053
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Tuckey
Mr Justice Bennett
Mr Justice Langstaff
No: 2007/0109/A1
MR Y VALLI appeared on behalf of the APPELLANT
This appeal raises three linked questions of some difficulty. It is for that reason, as we shall indicate, that this court would welcome further assistance by counsels' mind, both from the defendant and the prosecution point of view, being directed to the particular issues. Those questions are how, under the existing legislation, the court should set a minimum term when imposing a sentence of imprisonment for public protection where it is imposed upon a prisoner who is already subject to and serving an existing custodial term. The second issue is how the court should approach as a matter of principle imposing a sentence of imprisonment upon someone who is already serving a sentence of imprisonment for public protection and whether in the circumstances of a case such as this some adjustment, if it is otherwise permissible, may be made to the minimum term which he is destined to serve before release may be considered. The third and again linked issue is how in such circumstances, if it is permissible to do either the first or the second as a matter of principle, the court should approach the time spent in custody. In this particular case it appears that time spent in custody in relation to the offence which was the offence which the prisoner was currently serving at the time of the imposition of a sentence of imprisonment for public protection was deducted from the minimum term. That approach may not be permissible, particularly if it is not permissible to take any account of the existing sentence.
With that introduction the circumstances briefly were these. On 1st November 2006 at the Crown Court in York before His Honour Judge Hoffman, the appellant pleaded guilty on rearraignment to an offence of aggravated burglary, the circumstances of which do not for present purposes matter. On Friday 1st December 2006 he was sentenced to imprisonment for public protection. Between first being arraigned in respect of the aggravated burglary and the date of sentence, the sentencing judge had had the appellant before him on offences of dangerous driving and contempt of court in respect of which he had imposed a sentence of which, on 1st December, there were 26 months left to serve. The judge, concluding that seven years would be an appropriate determinate sentence had he been imposing a determinate sentence rather than the sentence of imprisonment for public protection which he proceeded to do, then rounded down the 26 months to two years for ease of calculation (that made nine years). He took half of that period (four-and-a-half years) as the minimum term to be served. It may be that there is an issue as to the amount of time which the judge directed should be deducted from that to represent the period that he had spent in custody. He had spent 82 days on remand in custody in respect of the offence of aggravated burglary, but a total of 200, as the judge put it on 1st December, or 210 as we are told by Mr Valli today, consistent with his completion of form NG1, if both the period of time on remand in custody in respect of the driving offence and that in respect of the aggravated burglary were aggregated.
The sentence did not please the appellant. He reacted violently within the dock. He swore in the choicest of terms at the judge. The judge directed that he should be brought back before him on Monday in order to answer a charge of contempt. He thus came before the court on 4th December 2006 as someone who was already sentenced to imprisonment for public protection. He was then sentenced to a 12 month period of imprisonment, expressed to be consecutive to the existing sentence of 26 months which had been imposed in respect of the dangerous driving and contempt of court.
It might be, if the judge's approach of adjusting the minimum term to reflect the total criminality upon the basis that this was material for the courts to consider in determining when might be the earliest time that release could be considered under the licence provisions. The judge might have taken half of that period of one year and added it to the four-and-a-half years which he had earlier set only the Friday before. But he did not do that. It is difficult to see quite what sentencing effect the imposition of the 12 months consecutive sentence therefore had.
Although the principal thrust of the grounds of appeal is that the judge took too high a determinate sentence as a starting point, whether of seven years or nine if one added the seven years to the two years formed by the rounding down of the driving offences, it seems to us that in reality issues of principle which we identified at the start of this brief judgment are involved. We give this short judgment for the assistance of the court which will follow us in deciding these issues and for the assistance of the parties in directing their minds towards the points of principle which trouble us. It may well be that the discussion in court which occurred following the sentence on the Monday for contempt of court would illuminate what at any rate was in the judge's mind, which on one view seems a practical and sensible approach, but on another view may be impermissible. In the light of the fact that there may have been such discussion, so we are told by Mr Valli, he deriving his information from counsel who in substitution for him was then present, we would like to see enquiries made and a transcript of any further proceedings involving exchanges between counsel and the court on that occasion be available for this court when it determines the full appeal with the assistance of both the Crown and the defence.
For that reason this appeal is presently adjourned.
[2007] EWCA Crim 1650
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lady Justice Hallett
Mr Justice Silber
Mr Justice Wilkie
No: 2007/0109/A1
MR Y VALLI appeared on behalf of the APPELLANT
MR D BROOKE appeared on behalf of the CROWN
Mr Valli, it may come as no surprise to you and Mr Brooke to learn that we intend to reserve our judgment in this case. However, so as not to keep Mr Ashes in suspense, we are prepared to announce our decision and I am afraid it is not favourable to him. The appeal will be dismissed. We will give our reasons at a later date. No one need attend and you will be notified when the reasons will be handed down. In the meantime may we express our extreme appreciation to both of you for all the help you have given us on this difficult area.
[2007] EWCA Crim 1848
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett DBE
Mr Justice Silber and
Mr Justice Wilkie
Case No: 0700109A1
Yunus Valli counsel for the Appellant
David Brooke counsel for the Respondent
Hearing date: 4 July 2007
Judgement
I. Introduction
By Chapter 5 of the Criminal Justice Act 2003 (“the 2003 Act”), provisions were made to impose indeterminate sentences for public protection on offenders if the court considered that there was “a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences” (section 225(1) of the 2003 Act). Such sentences comprised a specified minimum term which was one-half of the sentence which would otherwise have been imposed as a determinate sentence less the time spent by the offender in custody prior to sentence for that offence but the release of the offender would only take place after first he had served the specified minimum term and second thereafter only when the Parole Board considered it safe to release the offender.
Stephen Ashes received a sentence of imprisonment for public protection on 1 December 2006 and he appeals against this sentence with the leave of the single judge. On 3 May 2007, this Court adjourned the appeal of Steven Ashes so that at a subsequent hearing a separate division of this court could determine:
A) How, under the existing legislation, the court should set a minimum term when imposing a sentence of imprisonment for public protection where it is imposed upon a prisoner who is already subject to and serving an existing custodial term (Issue A);
B) How the court should approach as a matter of principle imposing a sentence of imprisonment upon someone who is already serving a sentence of imprisonment for public protection and whether in the circumstances of a case such as this some adjustment, if it is otherwise permissible, may be made to the term which he is destined to serve before release may be considered (Issue B); and
C) How in such circumstances, if it is permissible to do either the first or second as a matter of principle, the court should approach the time spent in custody (Issue C).
Our task has been to answer these questions as well as to hear the appeal but we should add that both counsel agree with the analysis and the answers to...
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