R v David Joseph Kerrigan and Another
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 28 October 2014 |
| Neutral Citation | [2014] EWCA Crim 2348 |
| Docket Number | No: 201401939 A8; 201402047 A1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 October 2014 |
[2014] EWCA Crim 2348
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
Lady Justice Hallett
Mr Justice Spencer
Mrs Justice Patterson DBE
No: 201401939 A8; 201402047 A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr C Blatchford appeared on behalf of Kerrigan
Mr J Dyer appeared on behalf of Walker
Mr P Lodato appeared on behalf of the Crown
: These two otherwise unconnected appeals have been heard together this morning because they raise the same issue. The appellants have leave to argue whether they were entitled to credit for time spent in custody awaiting sentence which coincided with time spent in custody having been recalled on licence.
Walker
Walker was born on 29th August 1992. He was aged 20 on conviction, he is now 22. He had one previous conviction for aggravated burglary. In 2010 he committed an extremely serious offence of burglary of an isolated farmhouse occupied by an elderly couple. This offence was committed jointly with Stephen Killip. In April 2011 he was sentenced to 44 months' detention. On 30th July 2012 he was released on licence with a condition of non-association with Killip. On 24th February 2013 Killip committed an unrelated offence of grievous bodily harm. On 26th February 2013 both the appellant and Killip committed the instant offence of attempted robbery.
The facts are that the appellant provided Killip with a large hunting knife and drove him to a petrol station on the A590 in Cumbria, where he waited for him to commit a robbery in the station shop. At around 1.30 pm Killip entered the shop, wearing ski gloves and a full stocking-type head covering, and holding the knife. He stood five feet from Michelle Rawlinson, the only member of staff present. He threatened her with the knife and demanded cash. Terrified, she screamed. This drew the attention of a mechanic working nearby. Killip ran off and was driven away from the scene by the appellant Walker.
Following the attempted robbery police were able to locate Walker quite quickly and arrest him. His vehicle was searched and various items recovered, but at that time not the knife. Messages on Walker's phone implicated Killip. Walker was charged and remanded in custody. He was then recalled to prison on 28th February 2013.
Efforts were made to trace Killip, and after several days he was located and arrested for the robbery and another matter. He denied both offences put to him but he too was recalled to prison on licence.
The investigation continued in relation to forensic examination of the items that had been found, as well as analysis of telephone traffic and cell site data. At the same time another police force was investigating Killip for a serious assault. This all caused some difficulties for the officers investigating the attempted robbery in gaining access to Killip in prison.
On 21st May 2013 the appellant pleaded guilty to the offence of attempted robbery. That summer the knife was recovered from the vehicle in which it had been hidden and police gained access to Killip in prison at last to interview him. He too was charged with the robbery.
On 17th February 2014 Killip pleaded guilty to the attempted robbery. On 19th February 2014 he pleaded guilty to the separate offence of grievous bodily harm and was committed for sentence.
On 3rd April 2014 both Walker and Killip appeared for sentence before Her Honour Judge Beech. During the course of submissions the judge was invited to allow the appellant credit for the time he had spent in custody. In rejecting those submissions she observed:
"In respect of both of you it has been submitted that the court should take into account the time that you have spent in custody on recall on licence. The court rejects any suggestion that your sentences should be reduced to reflect that fact. The reason that the court rejects it is because the requirement to spend that part of a sentence outstanding at the time when you commit a further offence is an inevitable consequence of offending which is spelled out clearly to offenders when they are sentenced. Being released from custody and remaining on licence is not a right. It is a permission which is a qualified permission and continues to be earned providing you continue to be of good behaviour, which neither of you were."
She also concluded that both Walker and Killip met the criteria for dangerousness.
The appellant received an extended sentence of 98 months: 50 months with an extension of 48 months. Killip received an extended sentence of 11 years six months and a five year extension for the offences of grievous bodily harm and attempted robbery.
10th October 2014 would have been the sentence expiry date for the original offence of aggravated burglary. The appellant Walker now has a conditional release date for the attempted robbery offence of 10th January 2017 and an expiry date for that sentence of 1st June 2022.
Mr Dyer's grounds on behalf of Walker fell into three categories. First, he argued that the sentence was manifestly excessive in that it failed to give sufficient weight to the mitigating factors. In particular the judge should have placed greater emphasis on the facts:
i) this was an attempt, not the full offence;
ii) despite the aggravating features in this case, it was not one which came towards the top of category 2 in the sentencing guidelines;
iii) although there was some planning, there was no sophistication in the execution of the plan;
iv) there was no additional aggravation in the fact that two offenders were involved because only one of them went into the shop;
v) the co-accused was in the shop for seconds only;
vi) the appellant pleaded guilty at the plea and case management hearing;
vii) he expressed his remorse.
The second category consisted of a challenge to the finding of dangerousness. Mr Dyer argued that the finding and the imposition of an extended sentence were not justified because:
(i) in contrast to his co-accused, there was no established pattern of violent offending;
(ii) the appellant had never caused serious harm to anyone;
(iii) the appellant was involved only as an accessory to the attempted robbery,
(iv) no actual violence was used;
(v) it could not be said, therefore, that there was a substantial risk of serious harm as a result of further specified offences.
In his third category Mr Dyer focussed on the effect of recall. Mr Dyer observed that the appellant Walker had served approximately ten and a half months in custody for breach of his licence prior to sentence. There was a significant delay between his plea of guilty and his sentence which was not his fault.
The basic principle of sentencing offenders to custody is that a custodial sentence shall be for the shortest term which in the opinion of the court is commensurate with the offence committed (see section 153(2) of the Criminal Justice Act 2003). A court should always consider the total period of time that a defendant will spend in custody from the date of recall and decide whether any adjustment should be made to the sentence. This was said to be particularly important where it is only the new offence which has put the offender in breach of his licence, the delay is outside his control and the breach of licence has been treated as an aggravating feature of the new offence.
Mr Dyer foresaw entirely arbitrary results if judges simply ignore the length of time that an offender spends in custody while effectively serving two sentences. Some defendants may effectively serve little or nothing by way of an additional punishment for the new offence; others may serve many months which will not count towards the sentence for the new offence as the appellant did.
Mr Dyer criticised the judge for failing to understand that the appellant was not bound to serve the whole of the balance of his original sentence. He submitted the judge was obliged to take account not only of the fact that the new offence was committed in breach of licence, but also of the effect of the delay before he was sentenced. He rejected the notion that Walker brought the delay upon himself by continuing to associate and offend with his co-accused. He contended the delay was all to do with the proceedings against the co-accused and totally outside his control.
In summary, he complained that the appellant Walker has been suffered undue prejudice the remedy for which is to make some reduction in the sentence.
The single judge was impressed by only one of those grounds, the last. He observed:
"I have considered the papers in your case and your grounds of appeal. You pleaded guilty at the first opportunity to a serious offence of attempted robbery. In my view, the aggravating factors identified by the judge amply justified a sentence, after trial, of six and a half years. You received 25% credit for your guilty plea at the [plea and case management hearing] and a further 10% reduction because it was an attempt rather than the full offence. In my view, the judge was also fully entitled to conclude that you were a "dangerous" offender, for the purpose of the relevant provisions, and that an extended sentence was called for."
With those observations we whole-heartedly agree and we can dispose of the grounds rejected by the single judge swiftly. Compared to some, the appellant Walker's criminal record may have been relatively short, but the offences were serious and suggested a very worrying trend. Having considered all relevant...
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