No: 200404163/A5 
Neutral Citation Number: [2004] EWCA Crim 2823
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 28th October 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE HENRIQUES 

MRS JUSTICE DOBBS 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 92 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR E BROWN appeared on behalf of the ATTORNEY GENERAL
MR A JEBB appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	THE VICE PRESIDENT:  The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient.  We grant leave.
2.	The offender was born in August 1975 and is therefore 29 years of age.  On 7th May 2004 he eventually pleaded guilty to aggravated burglary and also to an offence of conspiracy to pervert the course of justice.  On 25th June 2004 he was sentenced by His Honour Judge Daniel, at Mold Crown Court, to 6 years' imprisonment for aggravated burglary and 2 years for conspiracy to pervert the course of justice concurrently.  The judge made no order in relation to the unexpired period of licence to which the offender was subject and therefore made no order in relation to the total sentence of 6 years which he passed, save that it should run from the day when sentence was passed.
3.	In summary, the offender and another man broke into the home of a couple at night and threatened the man with a knife.  The offender held the male occupant on the bed with a wooden baton across his neck and eventually left with money and other items.  There were injuries to the victim. Both the occupants were badly affected by the experience, to the extent to which we shall come.
4.	Shortly before he was due to be tried for that offence of aggravated burglary, having earlier pleaded not guilty, the offender was party to an attempt to bribe the victim with the sum of £5,000 so as to alter his evidence against the offender.
5.	A man called Gareth Evans lived in Llay in North Wales, and his fiancee, Miss Lees, stayed at the address four times a week.  It was a semi-detached three bedroom house in a rural area.  Mr Evans was the Managing Director of a fork- lift company.
6.	In the early evening of 23rd October 2003 they had been out.  They returned at about 7.30 and they went to bed.  At about 1.30 in the morning they awakened to find the offender and another man in their bedroom.  The offender had a hood pulled tightly over his head.  He said: "You run a fork-lift company, we want a £1,000. You have cash here, you own a business, where's the money?"  He was told that money was not kept in the house.  Mr Evans got out of bed and approached the offender.  The offender and his accomplice pushed Mr Evans back onto the bed which in consequence collapsed.  Mr Evans was then held down by both men and the offender told his accomplice to punch Mr Evans in the kidneys.  He then said to his accomplice: "Give me the knife".  The offender, having been passed the knife, held it to Mr Evans' throat.  He continued to demand money.  Miss Lees was held down on the bed by the other man.  She said there was a wallet downstairs.  She was taken downstairs by the accomplice.  At that stage Mr Evans was able to disarm the offender and the knife was thrown on the ground.  However, the offender was still on top of Mr Evans and he took hold of a broken piece of wood from the bed.  It had a nail in it.  He held it across Mr Evans' throat and pushed the nail into Mr Evans.  He said: "We're the Chester boys, don't fuck with us, where's the money, there'd better be money, if not we'll come back and blow your kneecaps off." The accomplice called from downstairs that he had found the money.  The offender left the bedroom.  The accomplice had been persuaded not to take Miss Lees car keys; she offered her jewellery instead and the man took her rings from her fingers.  Both men ran from the house and drove away in a car at speed.  There had been £350 and credit cards in Mr Evans wallet.  That, together with his car keys, a mobile telephone and a DVD player were taken.  Miss Lees' jewellery was worth something over £100.
7.	As a result of this Mr Evans sustained a black eye, cuts to his head, bruising to his left arm, a chipped tooth, a slash on his finger and a grazing on his calf.  Both he and Miss Lees were badly affected by the attack.  They were very frightened and shocked at the time.  They felt unable to return to the house.  It was sold.  Miss Lees needed to have friends staying with her to make her feel safe.  For several months she would become very emotional as a result of the attack.  In consequence of all this her relationship with Mr Evans broke down.  The two split up and the wedding which they had planned for September 2003 was cancelled.
8.	When the offender was arrested he denied, in interview, any part in this offence.  But he was picked out by Mr Evans on an identification parade on 25th November.  He continued in subsequent interview to deny the allegations and advanced an alibi.  The rings taken from Miss Lees were returned anonymously to the police in January 2004.
9.	The offender having, as we say, pleaded not guilty to the offence of aggravated burglary, his trial was fixed for 27th April 2004. The offender was in custody.  However, on 9th and 12th April, Mr Evans received telephone calls from a man offering, at first, £1,500, and then £3,000 for him to retract his statement.  He refused.  He received further telephone calls on the 17th and 25th April, increasing the offer to £5,000.  On 26th April, the same person said he had £5,000 to hand over and they agreed to meet.  Mr Evans was handed £2,000 in cash by a woman who became a co-accused, Sarah Holmes.  She was present with two men, one of whom was the defendant, Hine.  Mr Evans was told that £3,000 would be put in his car, at court.  Later, while Mr Evans was with the police, on the same day, he had a further call from Mr Hine, who said he had available the outstanding £3,000.  Arrangements were made to meet Hine and Sarah Holmes.  They were arrested.  There was a sum just under £2,500 in cash in their car.
10.	Investigation showed that there had been recorded telephone calls between the offender, whom it will be recalled was in prison, and Hine, Sarah Holmes and the offender's sister.  Those recordings showed a plan to do that which we have described in seeking to buy off Mr Evans' evidence.
11.	The judge sentenced the offender on the basis that the plan had been hatched by Hine, and Hine on the basis that it had been hatched by the offender, those being the allegations respectively made by the two defendants blaming each other.
12.	The offender's sister accepted, when questioned, that she had obtained the money.  Sentences of 21 months were imposed on her and on Hine and Holmes was sentenced to a community punishment order.
13.	The offender has several previous convictions, including, in 1998, conspiracy to supply heroin, for which he was sentenced to 6 years' imprisonment and, in 2002, for burglary and handling stolen goods, when he was sentenced to a total of 2 years' imprisonment.  In relation to that sentence he had been released on licence on 14th July 2003, that is some 3 months before the offence of aggravated burglary.
14.	At the time when he appeared in the Crown Court there was approximately 10 months unserved in relation to the sentence for which he was on licence.
15.	On behalf of the Attorney-General, Mr Brown draws attention to what he rightly submits are eight aggravating features in this case.  First, there were two men involved, late at night, in breaking into the home of the sleeping victims, indicating targeting of these premises.  Secondly, the offender had a knife which he held against Mr Evans' neck and he thereafter used the piece of wood with the nail protruding in the way we have described.  Thirdly, Mr Evans was threatened with serious injury.  Fourthly, the injuries which we have catalogued were caused to him.  Fifthly, Miss Lees was threatened in order to assist the men in their search for money.  Sixthly, the attack had a serious and lasting effect on the victims and the subsequent attempt to bribe Mr Evans made him more wary for his safety.  Seventhly, the aggravated burglary was itself aggravated by the serious attempt to avoid justice, leading to the other offence which we have identified.  Finally, both of these offences were committed while the offender was on licence.
16.	Mr Brown draws attention to two mitigating features. First, the pleas of guilty, albeit that, in relation to the aggravated burglary it came very late and only in the circumstances which we have described. Secondly, the plan to bribe Mr Evans is not to be regarded as having been instigated by the offender.
17.	A number of authorities are referred to in the written reference.  They include Attorney-General's Reference No 34 of 2003 (R v Poyner) [2003] EWCA Crim 3073, Attorney-General's Reference No 19 of 2000 (R v Stock) [2001] 1 Cr App R(S) 35, Attorney-General's Reference No 89 of 1999 (R v Farrow) [2000] 2 Cr App R(S) 382 and R v Harrison [2002] 1 Cr App R(S) 471.
18.	The submission which is made by Mr Brown, on behalf of the Attorney, is that the sentences passed failed to reflect the seriousness of these offences. The judge erred in principle in failing to impose a consecutive sentence in relation to the conspiracy to pervert the course of justice and the submission is accordingly made that the sentences passed were unduly lenient.
19.	On behalf of the offender, Mr Jebb draws attention to the letter written to the court by the offender, which refers to a relationship which has resulted in the birth of a baby, now 4 months old.  The offender says that, now he has a family, all he wants to do is to get out and get a job and care for his family.  He expresses regret and asks for one more chance.
20.	Mr Jebb also draws attention to the terms of a report from the Valentines Unit of the prison where the offender is, which indicates that the offender has settled well into the prison regime and has attained level 4 of an incentive and privilege scheme, and he is currently in the enhanced unit at the prison.  He is required to take voluntary drug tests and he is working in the engineering work shop and has not given any cause for concern.
21.	Mr Jebb submits, having regard to the 21 months sentence imposed on his fellow conspirators to pervert the course of justice, that the 2 year sentence was not in itself unduly lenient.  He concedes, however, that, in principle and on authority, a consecutive sentence could properly have been called for in relation to that offence.  He submits that a term of 6 years was, by reference to the other authorities to which we have referred, not unduly lenient.  He draws attention to the fact that, although the offender has significant antecedents, they are not offences of, as he put it, "the most serious kind". He has not previously committed a domestic burglary. He has no record for violent offences and Mr Jebb points out that the knife used to threaten Mr Evans was not brought to the premises in advance but was taken from the kitchen on arrival.  To all of these matters we have regard.
22.	So far as the sentencing process in the Crown Court is concerned, we would have expected the learned judge to order, first, that the offender serve the unexpired portion of the licence in relation to his previous sentence.  We would then have expected him to pass a sentence of 6 or 7 years in relation to the offence of aggravated burglary, the running of that sentence to start consecutively to the service of the unexpired portion of the licence.  We would also have expected the learned judge to impose the 2 year sentence, which he did, consecutively to rather than concurrently with the 6 year sentence.
23.	It follows that, in our judgment, the total sentence passed on this offender was unduly lenient.  Taking into account that the position in relation to the unexpired period of the licence is now quite different from what it was at the time the offender appeared in the court below so that no sensible order would now be made in relation to it, and taking into account double jeopardy, the sentence which we pass is one of seven-and-a-half years' imprisonment, made up as follows:  6 years for the offence of aggravated burglary and 18 months consecutively for the offence of conspiracy to pervert the course of justice.