R v Szczerba (Ian Michael)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 06 February 2002 |
| Neutral Citation | [2002] EWCA Crim 440 |
| Docket Number | No: 200000287/Z4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 February 2002 |
[2002] EWCA Crim 440
The Vice President
(Lord Justice Rose)
Mr Justice Jackson and
Mr Justice Owen
No: 200000287/Z4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR E FITZGERALD QC & MR R TAYLOR appeared on behalf of the APPELLANT
MR D THOMAS appeared on behalf of the CROWN
On 14th September 1999, at Bradford Crown Court, this appellant pleaded guilty and, on 22nd December, at the same court, before Mr Recorder Lawler QC, he was sentenced in relation to the offences to which he had pleaded guilty, to life imprisonment, for the offence of false imprisonment, on count 2, and 8 years concurrently for burglary, on count 1. A recommendation was made that a minimum of 6 years be served before release, that period having been specified, following a decision that the notional determinate sentence should be one of 11 years in relation to false imprisonment.
Following refusal of leave by the Single Judge, he now appeals against sentence to this Court, by leave of the Full Court, differently constituted.
The facts were these. In the early hours of 4th February 1999, the appellant broke into the home of Mrs Lindsay. She was a 71 year old widow, living alone, in a small council bungalow with one bedroom, in Huddersfield. She heard a noise at the side of the house at about 1.30 am. Some minutes later she heard the sound of breaking glass. She found that a brick had been thrown through the bathroom window. She tried to secure the window, and she wedged a brush behind the kitchen door. She tried to telephone the police. She was unable to do so because the telephone wires had been cut.
At 1.55 am, there was a knock on the door. She was terrified and went into the kitchen. A few minutes later, the bathroom door opened and the appellant emerged and went into the kitchen. He told Mrs Lindsay to be quiet, as he was from the police. He pushed her into the living room. He asked where she kept her money. She showed him her purse. He said she had more than that; he picked up her walking stick and threatened to kill her. He went and found her shopping bag, and took out her pension book and over £100 in pension. He removed other small items of cash from the handbag and living room table. He told her to take her glasses off; she says he knocked them off her face. He says he removed them.
There were further threats to kill her. He made her hand over her eternity and wedding rings but, when she said they meant a lot to her, he handed them back. At one stage, he found some of her tablets in the kitchen and he threatened to give them all to her and kill her. He took her back into the bedroom. He demanded money. He threatened to punch her and to stab her with a screwdriver and said he wondered if that would kill her. He sprayed her face and head with hair spray. That took several minutes. It caused her discomfort in her eyes, in particular, for some weeks. He put his hand round her throat, for some 2 minutes, and applied pressure. She thought she was about to die. Eventually, he left, having been in her home, she estimated, for about an hour and three-quarters, and throughout that time she believed that she was going to be killed.
The appellant, during the course of this incident, had smoked three of Mrs Lindsay's cigarettes. The butts which he left behind were tested for DNA which matched a sample of blood taken in due course from the appellant.
After the incident, Mrs Lindsay went to stay with her daughter and eventually moved to sheltered accommodation. She had previously suffered from hypertension for which she had been treated by her doctor. As a consequence of this matter, instead of being an active person, who enjoyed going out, she became, at first, very upset and agitated and, later, introspective and nervous.
The learned Recorder, in passing sentence, among other things said this at page 2H of the transcript:
"The effect upon this lady has been devastating as the detailed statements show. Before this she was outgoing and lively. Since this she has had to move. She is now obsessive with security, her health has suffered physically and mentally, she has lost interest in much of her life and after suffering her husband's death which she did some years ago this defendant has in my view blighted her remaining years."
He then, as we indicated at the outset, proceeded to pass a life sentence for the offence of false imprisonment and he identified 11 years as the notional determinate sentence, specifying the minimum period to be served as one of 6 years, having regard to a period already spent in custody.
The appellant is 28 years of age. He has 19 previous convictions, involving some 44 offences, the majority for dishonesty, particularly burglary. By way of example, in 1991, he was sentenced to 7 years' detention, for the robbery, rape and buggery of a 77 year old disabled woman. In 1996, he was sentenced to 3 years' imprisonment for several offences of burglary, and he was sentenced to a short period of imprisonment in 1997, for affray.
There were reports before the Recorder. A pre-sentence report, in October 1999, indicated the appellant's claim that there was no premeditation or planning of this offence. He claimed not to know that the victim was elderly, despite the fact that he was familiar with the area and the premises were purpose built for elderly people. He denied threatening or assaulting the victim. He demonstrated little insight and he displayed what was described in the report as a "worrying pattern of offending", especially against the elderly. The high risk of him reoffending was referred to.
There was a psychiatrist's report dated 15th December 1999, which described the appellant as being of average intelligence and not suffering from mental illness. But he suffered from a dissocial personality disorder, and the latest offending could best be described as prolonged, deliberate, controlled, demanding and directly threatening to his elderly victim. He was assessed as presenting a high risk to vulnerable isolated individuals, and his condition was not amenable to psychiatric treatment. No medical recommendation was offered.
The original grounds of appeal before the Single Judge were that it was not necessary to pass an indeterminate sentence and that insufficient credit was given for the guilty plea, age, background, history and circumstances of the appellant. Amended grounds, by counsel appearing before this Court today, were before the Full Court which granted leave. Those grounds allege that the judge erred in setting the relevant part of the life sentence at 6 years. The 11 year starting point was too high and failed to reflect the guilty pleas, the appellant's mental state, the irrelevance of the dangerousness element and the likely effect of a life sentence. It was further contended that the Recorder wrongly took a proportion of the notional determinate sentence, greater than half. There were no exceptional circumstances justifying that. The submission was made, at that stage, that an appropriate starting point would have been about 9 years.
Since those grounds of appeal were before the Full Court, this Court has been presented with a considerable number of written submissions, on behalf of the appellant, and by Dr Thomas, acting at the Court's invitation as an amicus. We have also been provided with a considerable number of bundles of authorities. We are grateful to Dr Thomas for his written submissions. It was not necessary for the Court to call on him for oral elaboration. He resisted all the submissions made on behalf of the appellant, in the course of the written submissions, save that which is at the heart of this appeal, namely the length of the notional determinate sentence and the proportion of that sentence which ought properly to be served by the appellant. Dr Thomas conceded, in his written submissions, that the Recorder took too high a figure for both aspects of that part of the sentencing process.
On behalf of the appellant, Mr Fitzgerald QC was, in his written submissions, critical of the Recorder in five respects, although some of those matters, as will appear, have fallen away in oral argument today. First, he sought leave to argue a matter not raised in the grounds before the Full Court, namely, that it was not open to the judge to impose a life sentence for false imprisonment, which is a common-law misdemeanour. In our judgment that contention is unarguable, as Mr Fitzgerald came close to conceding. But, in any event, as we indicated, we refused leave to argue that point. As a matter of principle and authority, in our judgment, that contention has been unarguable for the best part of a century.
In Castro [1885] QB 490, affirmed by the House of Lords in [1883] 6 AC 229, it was held, in the words of Lord Goddard CJ, in R v Morris 34 Cr App R 210, at 215 that:
"…a Court can sentence to imprisonment and fine at discretion, provided, of course, that it does not give an inordinate sentence."
Those word were of course directed to the sentencing process in relation to a misdemeanour.
It is clear that a sentence exceeding 2 years should...
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