R v Craig William Robert Brown and James Thomas Butterworth
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GAGE |
| Judgment Date | 18 July 2006 |
| Neutral Citation | [2006] EWCA Crim 1996 |
| Docket Number | No: 200600056 A3 |
| Date | 18 July 2006 |
| Court | Court of Appeal (Criminal Division) |
[2006] EWCA Crim 1996
IN THE COURT OF APPEAL CRIMINAL DIVISION
Lord Justice Gage
Lord Justice Nelson
Mr Justice Leveson
No: 200600056 A3
200602014 A3
MR J CLOSE appeared on behalf of the Applicant, Brown
MR A BASSANO appeared on behalf of the Applicant, Brown
MR P HOLDEN appeared on behalf of the Applicant, Butterworth
MR A BASSANO appeared on behalf of the Defendant, Butterworth
As far as Butterworth is concerned, we make it clear that this was an important matter and we grant the extension and leave.
The court has before it an appeal against sentence and an application for leave to appeal against sentence, which raise important issues concerning extended sentences passed pursuant to section 227 of the Criminal Justice Act 2003 (the 2003 Act). We have heard both matters together and in this judgment we set out our decision in both cases. We start with the appeal of Craig William Robert Brown. Brown is aged 22. On 8 November 2005, at Preston Crown Court he pleaded guilty to 4 counts on an indictment containing five counts. On 29 November 2005, in respect of the counts to which he pleaded he was sentenced as follows: count 1, affray, an extended sentence of 36 months pursuant to section 227 comprising a custodial term of 22 months' imprisonment and an extension period of 14 months; count 3, breach of an ASBO, no separate penalty; count 4, intimidation of a witness, 18 months' imprisonment consecutive; count 5, breach on an ASBO, no separate penalty. The total sentence was therefore an extended sentence of 3 years, pursuant to section 227, comprising a custodial term of 22 months' imprisonment and an extension period of 14 months, with 18 months' imprisonment consecutive.
On 7 December 2005, the sentencing judge varied the sentence of 18 months' consecutive on count 4 to a sentence of four-and-a-half years' imprisonment concurrent to the sentence on count 1. The appellant appeals against sentence by leave of the single judge.
The facts can be shortly stated. On Friday 15 July 2005, Anne Kelly was at her home in Raikes Road when she heard an argument taking place outside the appellant's address across the road. She heard the appellant shout: "I'm going to smash your face in" and a man reply: "I'll ring up and get my lads down here". The appellant went into his house and came out with a sword two-and-a-half feet long and started to swing it towards another man. As the other man backed off the appellant followed him still swinging the sword. The man left the area.
The police were called. When the police officers arrived the appellant told them: "It's not me but the sword is in there". The police took possession of the sword and arrested the appellant. When he was interviewed the appellant said that it was a case of mistaken identity. He said there was another Craig Brown who looked just like him but was not him. He was released on bail.
On 5 August 2005, Miss Kelly picked out the appellant at an identity parade. Over the next two days she heard the appellant outside her home shouting "grass". Other people were with Miss Kelly when these incidents took place. At 12.40pm on 7 August 2005 the appellant shouted across the road to Miss Kelly that her house was going to be petrol bombed. In respect of these matters the appellant was arrested and interviewed on 8 August 2005. He denied that he had called Miss Kelly a grass and denied that he had threatened to petrol bomb her home. However, as we have said, he pleaded guilty to these offences.
The appellant has a large number of previous convictions. They consist of 33 convictions for 56 offences. They include four offences of possessing an offensive weapon; one offence of having a bladed article in public; one of threatening behaviour and one of assault occasioning actual bodily harm. There was before the court a pre-sentence report, which indicated that the appellant's offending started at the age of 16. The author of the report stated that since the age of 17 alcohol abuse by the appellant had become a problem. His offending had been persistent for a number of years and he had shown a capacity for violence. The author of the report was of the opinion that until there was a fundamental change in his attitude there was a high risk of the appellant re-offending.
In sentencing the appellant on 29 November 2005 the judge referred to the seriousness of the offences. He said that the history of involvement with weapons and violence meant that there was a substantial risk in the appellant's case that he would cause serious harm to others by the commission of further specified offences. He concluded that the court was bound to pass an extended sentence. The sentence had to reflect the fact that brandishing swords in public was unacceptable and that those who sought to intimidate witnesses would receive severe punishment.
On 7 December 2005, the judge reviewed the sentence which he had passed on 29 November. He said that taking into account observations of the court in R v Lang and Others [2005] EWCA Crim 2864 it was undesirable to impose a sentence consecutive to an extended sentence. Accordingly he varied the sentence in the terms to which we have referred.
Two issues of some importance arise in this appeal. They are, firstly, whether the judge in this case was right to follow guidance given in R v Lang that a determinate custodial sentence should not normally be made consecutive to an extended sentence. Secondly, whether it was appropriate to direct that a determinate sentence in length longer than the custodial element of an extended sentence should be served concurrently.
We turn to the case of James Butterworth now aged 23. His application for leave to appeal was referred to this court by the registrar. On 6 July 2005, he fell to be sentenced at the Preston Crown Court for offences to which he had pleaded guilty in the Hyndburn Magistrates' Court (the Magistrates' Court offences) and been committed for sentence; and sentences on indictment (the indictment offences), to which he had previously pleaded guilty in Preston Crown Court. In respect of the indictment offences he was sentenced to 20 months' imprisonment for a count of attempted robbery and six months' imprisonment concurrent for a count of theft. For the magistrates' court offences he was sentenced to eight months' imprisonment for assault occasioning actual bodily harm and eight months' imprisonment for an offence of affray. Those two sentences were consecutive to each other and consecutive to the sentence on indictment. The total custodial sentence was therefore three years. In addition the judge in his sentencing remarks said that applying section 227 of the 2003 Act the applicant would be subject to an extension period of two years in respect of the assault and a concurrent period of two years in respect of the affray.
The facts are as follows. First, the indictment offences: on 20 February 2005 the complainant, Graham Hughes, was on a bus travelling from Clayton le Moors to Blackburn. The appellant and a co-accused, Clough, got into the bus. They sat in the rear of the bus near to Hughes. Clough took Hughes' baseball cap and put it on his head. Hughes had a mobile telephone in his hand and Clough demanded that Hughes gave it to him. Hughes refused whereupon the appellant said: "Give me the phone or we'll leather you". Hughes again refused. Clough then hit Hughes with the back of his hand and tried unsuccessfully to take the telephone from his pocket. Clough slapped Hughes again and the appellant again threatened him with being leathered. Hughes managed to attract the attention of the driver who stopped the bus and ejected the appellant and Clough. Before being ejected the appellant took a bag of sweets valued at £8 from Hughes and said: "Watch your back". Clough left with the baseball cap, which he had taken from Hughes. CCTV footage from a bus led to the appellant and Clough being identified and arrested. At interview the appellant admitted being present but denied stealing anything from Hughes.
So far as the offences of assault and affray are concerned, they were committed when the appellant was on bail for the indictment offences. At about 9.15pm on 31 May 2005 the appellant was at a friend's house. Whilst heavily under the influence of alcohol he became involved in an argument with the residents of that house. This resulted in him head-butting Abigail Garrity- Phillips. The police were called. On arrival police officers found the appellant screaming, shouting, growling like an animal and waving his arms in the air. He ran away from the police officers but was found after a short chase. The appellant continued to be aggressive. He picked up a triangular red sign, held it above his head and threatened the police officers with it. The appellant then walked off with the road sign and took it into a public house. When the police officers entered the public house they found that the appellant had discarded the road sign and was holding a wooden stool above his head. He was threatening people with the stool. The appellant threw the stool at the police officers and had to be incapacitated by the use of CS gas spray. He was restrained and arrested. When interviewed he admitted making threats to the police and members of the public. He denied head-butting Miss Garrity- Phillips. He said he had been arguing with people at the house but did not assault anyone.
The appellant has a substantial criminal record consisting of 18 previous convictions for 23...
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