R v Trigger Alan Mike Seed; R v Philip Stark
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 13 February 2007 |
| Neutral Citation | [2007] EWCA Crim 254 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2007/00554/A1 |
| Date | 13 February 2007 |
[2007] EWCA Crim 254
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
The Lord Chief Justice of England and Wales
(Lord Phillips of Worth Matravers)
The President of the Queen's Bench Division
(Sir Igor Judge) and
The Vice-President of the Court of Appeal, Criminal Division
(Lord Justice Latham)
No. 2007/00554/A1
2007/00002/A2
MR A COMPTON appeared on behalf of THE APPLICANT TRIGGER SEED
MR A BLAKE appeared on behalf of THE APPELLANT PHILIP STARK
Tuesday 13 February 2007
THE LORD CHIEF JUSTICE
Introduction :
1. Once again judges who have to sentence offenders are confronted with the fact that the prisons are full. When they impose sentences of imprisonment—and very often the nature of the offence will mean that there is no alternative to this course—the prison regime that the offender will experience will be likely to be more punitive because of the consequence of overcrowding and the opportunities for rehabilitative intervention in prison will be restricted. Those already serving sentences are subject to the same adverse consequences. The Strangeways Report of Lord Woolf spells out the consequences of prison overcrowding.
2. The numbers of those in prison are a product of the numbers of custodial sentences imposed and the length of those sentences. Parliament has not given judges a free hand in respect of either of these. Statutory requirements have been laid down both in relation to the circumstances in which custodial sentences should be imposed and the length of those sentences. It is of course the duty of the judge to follow these requirements. Requirements of the Criminal Justice Act 2003 dealing with the sentencing for serious offences may well have the effect of increasing the size of the prison population. The requirements of Schedule 21 making provision for the determination of the minimum term in relation to mandatory life sentences may well, in due course, be seen to have this effect. Figures in relation to those serving indeterminate sentences for public protection suggest that these sentences may already be making a significant contribution to the rise in prison numbers.
3. In contrast to the statutory provisions that deal with serious and dangerous offenders, there are other provisions that should tend to reduce prison numbers. Section 152(2) of the 2003 Act provides:
"The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence."
This is an important provision. It requires the court, when looking at the particulars of the offence, to decide whether the "custodial threshold" has been passed. If it has not, then no custodial sentence can be imposed. If it has, it does not follow that a custodial sentence must be imposed. The effect of a guilty plea or of personal mitigation may make it appropriate for the sentencer to impose a non-custodial sentence.
4. Section 153 of the 2003 Act provides that, where a custodial sentence is imposed, it must be:
"for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it."
This also is an important provision.
5. In times of prison overcrowding it is particularly important that judges and magistrates pay close regard to the requirements of both these provisions. In particular, when considering the length of a custodial sentence, the court should properly bear in mind that the prison regime is likely to be more punitive as a result of prison overcrowding.
6. Section 142 of the 2003 Act sets out the purposes of sentencing. The matters to which the court must have regard when sentencing an offender are:
(a) the punishment of offenders;
(b) the reduction of crime, including its reduction by deterrence;
(c) the reform and rehabilitation of offenders;
(d) the protection of the public; and
(e) the making of reparation by offenders to persons affected by their offences.
Unless imprisonment is necessary for the protection of the public the court should always give consideration to the question of whether the aims of rehabilitation and thus the reduction of crime cannot better be achieved by a fine or community sentence rather than by imprisonment and whether punishment cannot adequately be achieved by such a sentence. We believe that there may have been a reluctance to impose fines because fines were often not enforced. Enforcement of fines is now rigorous and effective and, where the offender has the means, a heavy fine can often be an adequate and appropriate punishment. If so, the 2003 Act requires a fine to be imposed rather than a community sentence.
7. Particular care should be exercised before imposing a custodial sentence on a first offender. Association with seasoned criminals may make re-offending more likely rather than deter it, particularly where the offender is young. A clean record can be important personal mitigation and may make a custodial sentence inappropriate, notwithstanding that the custodial threshold is crossed.
8. We make no apology for emphasising these matters, although we are aware that we are doing no more than repeating a number of previous exhortations of this court in the face of prison overcrowding: see R v Bibi (1980) 71 Cr App R 160, R v Ollerenshaw [1999] 1 Cr App R(S) 65, R v Howells and Others [1999] 1 Cr App R 98, R v Kefford [2002] EWCA Crim 519, R v Delamare [2003] EWCA Crim 424, R v Croft [2005] EWCA Crim 3706 and Attorney General's Reference No 11 of 2006 ( R v Scarth) [2006] Crim LR 775.
The Appeal of Trigger Seed
9. On 5 December 2006, at the Crown Court at Chelmsford, the applicant pleaded guilty on re-arraignment to assault occasioning actual bodily harm. On 8 January 2007 he was sentenced by Mrs Recorder Simler to six months' imprisonment. The Registrar has referred his application for leave to appeal against sentence directly to the full court. We have granted leave to appeal.
10. The complainant, Miss Piscina, is 27 years of age. She has learning difficulties and receives support from social services. The same is true of the appellant, who is aged 36, and was a friend of hers. He has previous convictions for road traffic offences, but no others.
11. On 6 May 2006, the complainant went to the appellant's flat where they drank some alcohol together to celebrate her forthcoming birthday. An argument started between them in the course of which the complainant commented on the fact that the social services had had to remove the appellant's child from his care. The complainant then received a blow to the head in the vicinity of her left eye from a glass mug that appeared to have been thrown at her by the appellant. She left his flat with blood pouring from a wound and telephoned the police. She was taken to hospital where the wound, 2cm in length, was sutured.
12. The appellant was charged with assault occasioning actual bodily harm. Initially he declined to comment. When re-arraigned, however, he pleaded guilty on a basis that was recorded in writing and accepted by the prosecution. It reads:
"He accepts he lost his temper and threw wine over Miss Piscina.
In doing so the glass left his hand, struck her and caused the injury complained of."
13. This version of the facts was opened to the Recorder by Mr Kelly for the prosecution when the appellant appeared before her to be sentenced. The following are the reasons that the Recorder gave for imposing a sentence of six months' imprisonment:
"…. this offence of assault occasioning actual bodily harm on Samantha Piscina in which you struck her with a glass, close to her eye, causing a vertical laceration that required sutures is so serious that neither a fine alone nor a community sentence can in my opinion be justified. This was a wholly unprovoked assault with a glass which is, in effect, a weapon on a vulnerable person.
Miss Piscina had come to see you to spend the evening with you. You had been drinking together, there was an argument, you told her to leave and in the process of doing so you struck her face with a glass. I therefore pass a sentence of six months' imprisonment. This is the shortest which in my opinion matches the seriousness of your offence and takes into account your personal circumstances as described to me by Mr Compton on your behalf and all that has been said about you, including the fact that you have pleaded guilty to this offence, albeit not at the first available opportunity, the fact that you have learning difficulties, the fact that your character is good save for a number of related driving convictions in 2003, and that you have been engaged in unpaid charity work."
14. Mr Kelly then asked the Recorder to confirm that she had sentenced the appellant on the basis of his plea. We can well understand why he asked that question. The Recorder replied:
"Yes, I have sentenced you on your basis of plea which is that you lost your temper and threw wine over Miss Piscina. In doing so the glass left your hand and struck Miss Piscina in the face."
15. The Recorder's sentencing remarks, and the sentence that she imposed, would have been appropriate had the appellant deliberately thrown his glass mug at the complainant. They were not appropriate for an offence of throwing wine at the complainant and unintentionally...
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