R v Joyce (Martin Peter Francis) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 07 December 2010 |
| Neutral Citation | [2010] EWCA Crim 2848 |
| Docket Number | Case Nos: 201003323 A9 T20107113/T20097455 S20100346 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 December 2010 |
[2010] EWCA Crim 2848
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Crown Court Cardiff
HHJ Hopkins QC and
From Crown Court Manchester
HH J Henshell
Before: Lord Justice Hughes
Mr Justice Mackay
and
Mr Justice Cranston
Case Nos: 201003323 A9
201003959 A4
T20107113/T20097455
S20100346
Christopher Lloyd Rees (instructed by De Maide Solicitors & Advocates) for the First Appellant
Chudi Grant (instructed by Robert Lizar) for the Second Appellant
Carl Harrison (instructed by CPS) for the Respondent
Hearing dates: 23 November 2010
Crown copyright©
Mr Justice Cranston:
Introduction
The Registrar has referred both of these applications for leave to appeal against sentence to the full court and directed that they should be listed together. The applications concern unlawful sentences. Both applications highlight the question, albeit in slightly different circumstances, as to whether extended sentences can be aggregated. It is clear from the authorities that aggregation is permitted, in fact is desirable, when imposing imprisonment for public protection for more than one offence. However, there is no express authority as to whether the same principle applies to extended sentences. The Registrar has asked us for guidance.
R v Pinnell
The extended sentences at issue in this case were passed after the applicant pleaded guilty to two counts of inflicting grievous bodily harm (count 2 on both indictments) and one count of assault occasioning actual bodily harm (count 4 of the second indictment) in the Crown Court at Cardiff. On 20 th May 2010 HHJ Hopkins QC sentenced him as follows:
Indictment 1
Count 2: 3 1/2 years' extended sentence comprising 2 years' custody and 18 months' extension.
Indictment 2
Count 2: 3 1/2 years' extended sentence comprising 2 years' custody and 18 months' extension consecutive to the sentence on indictment 1.
Count 4: 8 months' imprisonment concurrent.
Thus the total sentence was 7 years' extended sentence comprising 4 years' custody and 3 years' extension. Ninety-nine days spent on qualifying curfew were taken into account when passing these sentences pursuant to section 240A Criminal Justice Act 2003. No pleas were taken in relation to two counts of causing grievous bodily harm with intent, count 1 on both indictments, since these were alternatives to the second counts. One further count of assault occasioning actual bodily harm (count 3 of Indictment 2) was ordered to lie on file.
The background to the offending reflected in the counts on the first indictment was that on the evening of 6 h October 2007 the complainant, Stephen Ryan, visited The New Penn public house, Llanederyn, Cardiff. He witnessed a fight between a person and a group of males. He intervened and managed to break up the fight. The applicant was part of the group of males. He approached the complainant and said: “Don't you know who I am? I'm Paul Pinnell”. A friend, Rodney Williams, approached them and tried to calm the applicant. The applicant ignored this and advanced towards the complainant. The complainant grabbed hold of him in order to defend himself. The applicant's group joined in the attack and the complainant suffered pain to his right eye. The complainant was on the floor and his jacket was pulled off him. He managed to run away from the group with Williams' help. Williams went back to retrieve the complainant's jacket only to return and tell him to run. The complainant tried to run but was kicked in his ankles. He fell over and was kicked and stamped upon. He thought he heard the applicant's voice. He was being choked and as he was drifting in and out of consciousness he said: “Are you trying to kill me?” The person replied: “What do you think I'm trying to do?”. A vehicle approached and as a result the group ran off. The complainant was taken to hospital. He suffered a perforated ear drum, a swollen left eye and a broken nose. The police attended the hospital and described his head as being swollen like a watermelon.
The facts behind the second indictment occurred in late 2008. On Christmas Eve Simon Cummings (count 2) was in The Three Brewers public house, Cardiff. He was accompanied by his brother and another group which included Craig Greenland (count 4). Greenland suffered from cerebral palsy and used a zimmer frame to walk. At about 11.30pm Greenland was with a male named Ed Davies. The applicant deliberately hit Davies with his shoulder. An argument occurred between them. Greenland said to the applicant: “Come on mate, leave it alone.” In response the applicant punched him in the face, splitting his lip. The applicant then threw a chair against the wall which sparked further violence within the public house. A considerable amount of fighting ensued. Once outside, the applicant punched Cummings to the face without any provocation. Cummings fell to the floor and in the process hit his head on a bench. He appeared to be unconscious. Cummings suffered a skull fracture and multiple areas of bleeding and bruising within the brain. These events took place when the applicant was on police bail for the 6 th October 2007 incident.
When the judge came to sentence the applicant he had before him someone in their late twenties with 14 appearances before the courts during the previous decade. Most of these were for driving offences. There was one previous conviction for assault occasioning actual bodily harm. There were no other previous convictions for offences of violence. The applicant had experienced a range of sentencing options from a conditional discharge to fines, community based penalties and immediate detention, the longest period being 4 months in 2000.
The pre-sentence report recorded that the applicant accepted full responsibility for the offences and appeared genuinely remorseful and ashamed. Alcohol appeared to be a contributing factor to his violent behaviour and he was aware that he would need to address that issue if the risk of harm and re-offending were to reduce in the future. The report writer opined that he posed a high risk of harm and a medium risk of re-offending. Of offenders of a similar age, gender and criminal history and with similar social, and personal risk factors, about four in ten were known to re-offend violently, and six in ten non-violently, within 2 years of conviction. However, if the applicant addressed his offending behaviour these risks were likely to reduce in the long-term.
In passing sentence the judge said that, at no time during the course of the investigation of matters on the first indictment had the applicant shown any remorse. His mindless violence was truly sickening. The incident was started by him for no reason whatsoever. His violence then encouraged others to join. The offending involved two separate attacks on the complainant. In the second he strangled the complainant close to unconsciousness. The attack involved kicking a defenceless man as he lay, in the first incident, or crawled, in the second, on the ground. As a result of the complainant's injuries the complainant was unable to work and lost about £8,000 in earnings. He was still awaiting treatment for nasal breathing difficulties and had suffered psychologically.
A victim of the attack represented by the second indictment, Mr Cummings, had also suffered. He had dizziness and an inability to focus, which left him unable to read, and lethargic. He was incapable of driving until June 2009. Again, there was not the slightest hint of remorse. This was totally unprovoked, gratuitous violence. There were two separate complainants. The assault occasioning actual bodily harm was upon a disabled man and the offences were committed whilst on bail. The applicant was a “mindless thug”. The public needed protection from him. Each of the offences was a serious violent offence pursuant to Schedule 15 of the Criminal Justice Act 2003 and there was a significant risk of serious harm from future specified offences committed by him. He was thus dangerous within the terms of that legislation. The judge then passed the sentences indicated earlier.
R v Joyce
On 24 June 2010 at the Crown Court at Manchester HHJ Henshell sentenced the applicant to an extended sentence of 5 years, comprising a custodial term of 4 years' imprisonment and an extension period of 12 months. Earlier that month the applicant had pleaded guilty at the Manchester City Magistrates' Court to assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 (offence 1), theft, contrary to sections 1(1) and 7 of the Theft Act 1968 (offence 2) and possession of an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953 (offence 3). The offences were committed to the Crown Court for sentencing pursuant to section 3 of the Powers of the Criminal Courts (Sentencing) Act 2000.
The facts behind the offending in this case were as follows. On 7 April 2010 this 24 year old applicant entered a Tesco store in Burnage, Manchester. He had with him his young daughter in a pushchair. A CCTV operator in the store, Tracey Martin, saw him in the vicinity of the baby supplies and cosmetics selecting various items. Her suspicions were aroused by a single man in the cosmetics section. She saw him take a number of items, including baby wipes and make up, and leave the store without any attempt to pay. Ms Martin and the store security guard, Mr Hassan, followed the applicant into...
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