R v Considine (Lawrence Phillip)
| Jurisdiction | England & Wales |
| Judge | SIR IGOR JUDGE,President of the Queen's Bench Division |
| Judgment Date | 06 June 2007 |
| Neutral Citation | [2007] EWCA Crim 1166,[2007] EWCA Crim 1101 |
| Docket Number | Case No:2006/05398/A5 (1),No: 200605842/A6–200605398/A5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 June 2007 |
[2007] EWCA Crim 1101
Sir Igor Judge
(President of the Queen's Bench Division)
Lord Justice Gage
Mr Justice Goldring
Mrs Justice Rafferty DBE
Mrs Justice Swift DBE
No: 200605842/A6–200605398/A5
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MISS E BUSSEY-JONES appeared on behalf of the APPLICANT DAVIS
MR M MAYNARD appeared on behalf of the APPLICANT CONSIDINE
THE ATTORNEY-GENERAL & MR N HILLIARD appeared on behalf of the CROWN
We are grateful to counsel for the applicants for their submissions. We have reached the following conclusions: in Davis, the application for leave to appeal will be refused. In Considine, the application for leave to appeal will be allowed but, having allowed the application, we shall dismiss the appeal.
The only further order that we shall make, Miss Bussey-Jones, is that you should be allowed legal aid for your attendance today. We are grateful to you for your assistance. You, Mr Maynard, have you got legal aid?
I have not.
You must have legal aid for your attendance today as well.
We shall reduce our reasons into writing and hand them down in the usual way. When we do, there is no need for any attendance by counsel. Arrangements will be made, if you let our Associate know where you would like a copy of the judgment sent, so that you can then inform your clients of the terms of the judgment. Very well, thank you very much. We shall adjourn and reconstitute.
[2007] EWCA Crim 1166
The President of the Queen's Bench Division
Lord Justice Gage
Mr Justice Goldring
Mrs Justice Rafferty and
Mrs Justice Swift
Case No:2006/05398/A5 (1)
2006/05842/A6(2)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NORTHAMPTON (1)
HIS HONOUR JUDGE ALEXANDER QC
THE CROWN COURT AT PORTSMOUTH (2)
HIS HONOUR JUDGE HETHERINGTON
Mr M Maynard for the Appellant (1) Rt Hon Lord Goldsmith QC, HM Attorney-General, Mr Nicholas Hilliard and Nigel Povoas for the Crown
Miss E.B Bussey-Jones for the Applicant (2) Rt Hon Lord Goldsmith QC, HM Attorney-General, Mr Nicholas Hilliard and Nigel Povoas. for the Crown
Hearing dates: 3 rd May 2007
President of the Queen's Bench Division
These cases came before the full court as renewed applications for leave to appeal against sentence, following refusal by the single judge. An issue of principle arose which justified the grant of leave to Considine. Having heard the argument on 3rd May 2007, we dismissed Considine's appeal, and refused Davis' renewed application for leave to appeal. These are our reasons.
Lawrence Philip Considine
Lawrence Considine is now thirty eight years old. He has twelve previous convictions for twenty four offences, including offences of violence.
On 23 rd August 2006 in the Crown Court at Northampton before His Honour Judge Alexander QC and a jury he was convicted on two counts of making a threat to kill and one count of unlawful possession of an article with a blade or point. He was acquitted of assault occasioning actual bodily harm, on the basis that no actual bodily harm was sustained by his victim, and also acquitted of criminal damage, on the basis that no property was in fact damaged. Two further counts were ordered to remain in the file on the usual terms, and no evidence was offered in respect of an additional count of possession of an article with a blade or point. A not guilty verdict was entered under section 17 of the Criminal Justice Act 1967.
On 12 th October 2006, Considine was sentenced on the two counts of making a threat to kill to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 (the 2003 Act), with a minimum term fixed at two years 159 days, account having been taken of 206 days spent in custody on remand. The sentences were concurrent, and a further concurrent sentence of two years imprisonment was imposed for possession of an article with a blade or point.
The facts of the case can be taken shortly. The appellant had been involved in a long term relationship with the complainant, Jennifer Brown, which was marked with incidents of threats and violence. After they separated, arrangements were made for the applicant to see his thirteen year old daughter at the weekends. The precise arrangements do not matter, but the hand over arrangements were completed in a car park in Northampton. On 10 th September 2005, during the course of the exchange, an argument developed between the appellant and the complainant which arose from a letter received by him from solicitors in relation to an unconnected matter.
The appellant lost his temper with the complainant. During the course of the fracas which followed he threatened her, saying, “that's it, now you are dead. I am going to kill you”. He returned to his car, and got into the passenger seat. He then left the car carrying a lock knife in his hand. He pointed the knife at her stomach. He continued to shout at her, and he then started making threats to her brother Constantine, saying words to the effect that he would kill him. Then while marking her neck with his index finger, he said “I am going to kill your brother. Do you want to see how quick I can get hold of a gun. Go and open my car boot and see the gun I have got in there”. The complainant fled the scene, and entered a nearby store and asked for the police to be called. The incident had been picked up on security cameras.
In due course the appellant was arrested. He was found to be in possession of two knives, including a lock knife. In interview he admitted that an argument had taken place, but said that any comments had been made in the heat of the moment. There had been no violence. He carried the knife because he was a carpenter and it was a tool which he used in the course of his normal work.
During the course of the trial evidence was admitted under what we may describe compendiously as the “bad character” provisions of the 2003 Act. The complainant gave evidence which revealed a pattern of violence by the appellant throughout the relationship. She described a number of specific such incidents which had not resulted in criminal convictions. In his sentencing remarks Judge Alexander explained that leave was given to the Crown under section 101 of the 2003 Act to adduce evidence from the complainant “of a history of violence towards her during her long relationship with the defendant”. Her evidence “was of serious violence towards her going back many years,” which if made the subject of trial and convictions would have filled those ten years with “specified offences”. It was submitted to the judge that all these matter were “unsubstantiated”. They had not resulted in the “finality” of convictions. The court should “steer clear” of attaching any weight to them, or of putting “too much weight” on them. The same arguments were addressed to us by Mr Maynard.
The judge adjourned overnight to consider the submission. He explained that he had heard the evidence of the complainant and the defendant. In the absence of any finding by the jury about specific incidents, but in the context of their verdict at trial, he made his own judgment. He concluded that the complainant was a truthful witness, who did not seek to exaggerate her evidence, and showed no signs of antagonism towards the appellant. The judge considered “the reverse to be the case” of the appellant, who appeared to be a “potentially very dangerous man”, particularly in the course of his “dealings” with the complainant and anyone who crossed him. The judge reminded himself that he should be extremely careful when making such judgments, and that he would not base any final conclusions exclusively on his own assessment of the evidence.
The judge reflected on the appellant's previous record. His convictions go back some years. In 1992 he was convicted of threats to kill. In 1994 he was convicted of assault occasioning actual bodily harm, an incident in the course of a dwelling house burglary in which the householder sustained a broken arm. In 2004 he was convicted of assault occasioning actual bodily harm and using threatening abusive or insulting words or behaviour with intent to cause fear or provoke violence. On this occasion he was carrying a piece of fence wood as a weapon. He was however granted a conditional discharge.
The pre-sentence report concluded that the appellant was at medium to high risk of re-offending and “high risk of harm”. The risks would be reduced if he were able to control his intake of alcohol and address what were described as “anger issues”. The writer of the report believed that “much work” was needed to address these matters, but added that the appellant had reported to him that since his remand in custody he had indeed taken measures to address them.
The sentence of imprisonment for public protection was based on a number of features, which the judge explained with meticulous care. First, he addressed the facts of the offences of which the appellant was convicted. He then considered the appellant's previous convictions, and the concession, rightly made, that section 229 (3) of the...
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