R v O'Brien (Practice Note)

JurisdictionEngland & Wales
JudgeLORD JUSTICE HOOPER
Judgment Date14 July 2006
Neutral Citation[2006] EWCA Crim 1741
Docket NumberCase No: 200600113A3; 200600114A3; 200600679A4; 200600059A6
CourtCourt of Appeal (Criminal Division)
Date14 July 2006

[2006] EWCA Crim 1741

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CHESTER CROWN COURT

His Honour Judge De Edwards

T20057262 and T20057261 (O'Brien and Harris)

Bournemouth Crown Court

His Honour Judge Wiggs

T200507112 and T20057097 (Moss)

Crown Court at Boulton

His Honour Judge Clayson

T200507207 (Llewellyn)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Hooper

Mr Justice Penry-Davey and

Mr Justice Walker

Case No: 200600113A3; 200600114A3; 200600679A4; 200600059A6

Between:
Karl O'brien, Christopher Harris, Edgar Moss, Gareth Llewellyn
Appellants
and
The Crown
Respondent

Mr P. Cadwallader for the respondent

Mr S ap Mihangel for the appellant O'Brien

Mr R Boag for the appellant Harris

Mr R. Griffiths for the appellant Moss

Mr G. Robinson for the appellant Llewellyn

LORD JUSTICE HOOPER
1

Three separate cases, one with two appellants, were listed before us because the three cases raised the same question: "Can a sentence of imprisonment for public protection ("IPP") under section 225 (2) of the Criminal Justice Act 2003 be ordered to run consecutively to another sentence of IPP?". The cases also raise another practical and linked question: "If a court wishes to order a defendant to serve the remaining period of a previous sentence of imprisonment pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2003 and is also sentencing the defendant to a sentence of IPP, how may that be achieved?". (It should be noted that section 116 has been repealed by the Criminal Justice Act 2003 except in respect of offences committed before 4 April 2005. See Archbold 5–364 & 5–364n and the Comment in Sentencing News, June 5 2006, page 8 and the cases cited therein.) Although these cases concern sentences of IPP the same principles must, it seems to us, also apply to sentences of life imprisonment under section 225(2) of the Criminal Justice Act 2003 and sentences of detention for life or for public protection under section 226 of the same Act.

2

One of the appellants, Llewellyn, appeals his sentence by certificate of the sentencing judge. The Registrar referred the other applications for leave to appeal to the Full Court and we granted leave. To the extent to which any extension of time is required we grant it.

O'Brien and Harris

3

We start with O'Brien and Harris, both of whom were aged 23 at the time of sentence. On 5 th September 2005 at the Crown Court at Chester O'Brien pleaded guilty on re-arraignment to one count of assault with intent to rob (T20057261). On 4 th July 2005 at the Crown Court at Chester O'Brien and Harris pleaded guilty to one count of robbery (T20057262). On 3 rd November 2005 (following a Newton Hearing in relation to Harris in which the judge found against Harris) they were sentenced by HHJ Elystan Morris. The sentences which the judge must have meant to pass were as follows.

O'Brien

T20057261 IPP with a minimum term of 6 months' imprisonment

T20057262 IPP with a minimum term of 15 months' imprisonment consecutive

Total sentence: IPP pursuant to s.225 Criminal Justice Act 2003 with a minimum term of 21 months' imprisonment, minus 128 days spent in custody on remand.

Harris

Imprisonment for Public Protection with a minimum term of 18 months' imprisonment.

Total sentence: Imprisonment for Public Protection with a minimum term of 18 months' imprisonment, minus 128 days spent in custody on remand.

4

Their applications for leave to appeal sentence were referred to the Full Court by the Registrar on the basis that the case of O'Brien raised the novel point of whether a sentence of IPP could be made to run consecutively to a separate sentence of IPP. Harris was referred simply because he was O'Brien's co-accused.

5

We start with indictment T20057261. On 17 th April 2005 a 21 year Chinese student, Mr Leang, was walking to work. He noticed O'Brien standing outside a newsagents with two male companions. He took out his mobile phone to make a call. O'Brien jumped on his back and reached for Mr Leang's phone. Mr Leang attempted to get O'Brien off his back, fell to the floor and shouted for help. O'Brien put his hand over his mouth and punched him on the head, causing his glasses to fall to the floor.

6

Mr Leang managed to put his phone into his pocket and stood up to face O'Brien. He recognised O'Brien as a customer from his shop. He asked O'Brien what he was doing and O'Brien punched him in the face forcing him to fall to the ground in a dazed state. He got up and one of O'Brien's companions pushed him to the right shoulder forcing him to stumble back. O'Brien then punched him to the lip and then pushed him in the back shouting "Come on, come on". O'Brien and his companions walked off and Mr Leang telephoned the police. On apprehension, O'Brien said "It was me, I had a fight with someone who hit me.' O'Brien was granted bail.

7

We turn to indictment T20057262. On 26 th June 2005 the complainant had been drinking in Chester and approached O'Brien and Harris to ask directions to a taxi. The appellants told him that they were going to get a taxi and that he could follow them. The complainant was a stranger to Chester. They walked, engaged in general conversation when the complainant was struck in the face by one of the appellants. As he fell to the floor his watch came off and was picked up by one of the appellants. The complainant was then punched and kicked, mainly around the face. One of the appellants pulled at the complainant's necklace causing it to break and his gold link bracelet was pulled from his arm. An attempt was also made to pull the other two gold bracelets from his arm. The complainant managed to get to his feet, attempted to get away, but was pulled back and attacked again. The complainant then managed to get away. As a result of the attack, the complainant sustained facial cuts requiring stitches, swelling and bruising to the left eye area and bruising to his chest. The incident was captured on video. The appellants were arrested shortly after.

8

O'Brien is 23 years of age and has no previous convictions. He received a caution in 2004 for using threatening, abusive or insulting words or behaviour likely to cause distress.

9

Harris is 23 years of age and has 3 convictions for 9 offences. His first conviction was in 2001 for taking a vehicle without consent for which he was sentenced to 12 months detention in a young offenders institution. He was sentenced to a community punishment order in 2004 for a bail offence, a common assault and damage to property. In 2004 he was further convicted of having a bladed article in a public place and sentenced to a community punishment order.

10

A pre sentence report ("PSR") prepared for O'Brien described his behaviour of 26 th June 2005 as indicative of a propensity to commit opportunistic offences including the use of violence. His minimisation of responsibility for his behaviour indicated that his risk of reconviction was at a raised level. In a later PSR, requested after O'Brien had pleaded guilty to the assault with intent to rob, it was pointed out that both these offences were serious specified offences under the Criminal Justice Act 2003 and both carried a potential sentence of life imprisonment. Both offences involved the appellant in unprovoked attacks on members of the public. As he previously only had a caution recorded against him, this was a significant escalation in his offending behaviour and his potential to cause harm to others was therefore increased. His risk of re-offending and therefore his risk of causing harm were high until he undertook a specific programme of work to address the underlying issues relating to his offending behaviour.

11

In his PSR Harris was assessed as being at medium risk of causing serious harm to the public, with an increased risk of harm when under the influence of alcohol and in the company of his peers. A further report was requested as the offence of robbery is a serous specified offence as defined in the Criminal Justice Act 2003. The report writer concurred with the risk assessment in the first report. In committing this offence the appellant displayed the potential to cause serious harm to the victim. However he had shown good insight into the factors behind his offending behaviour and if he remained motivated to address these issues then his risk of both offending and of causing harm would be reduced. The appellant did not have a previous conviction for a relevant offence (section 229(3) of the Criminal Justice Act 2003). He did not have an established pattern of violent offending and provided he undertook the work outlined in the reports, any potential risk he may pose could be reduced for his release.

12

We summarise the sentencing remarks. In relation to O'Brien, the second offence was committed whilst on bail for the first offence and required a consecutive sentence. Both offences were committed against people who appeared to be vulnerable at that stage and unlikely to offer any resistance to the violence used and threatened. O'Brien attacked a vulnerable Chinese student and had two other persons with him at the time. Mr Leang had been left feeling very uncomfortable and very vulnerable. The injuries that were sustained were bruising injuries but nevertheless nasty and O'Brien had used quite a bit of violence. The offence on 22 nd June was an even more cowardly attack. It was a wholly cynical joint enterprise and the camera film very adequately showed what happened leading up to the attack. The guilty pleas were taken into account. O'Brien had pleaded guilty in respect of the robbery in June almost at the very first opportunity. In respect of the robbery in...

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