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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hylands, R. v [2004] EWCA Crim 2999 (25 November 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/2999.html Cite as: [2004] EWCA Crim 2999 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEEDS
His Honour Judge MacGill
Ref: 200401025C3*1
Strand, London, WC2A 2LL |
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B e f o r e :
Mr Justice Poole
Mr Justice Stanley Burnton
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The Queen |
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- and - |
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Robert Stanford Hylands |
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Jonathan Devlin appeared on behalf of the Crown
Hearing date : 4 November 2004
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Crown Copyright ©
This is the judgment of the Court :
"13. However, the fact that the position that arises in relation to section 109(5) is different from that which arose under the Sexual Offences Act does not mean that it is not important that a defendant should have the opportunity of obtaining the verdict of a jury if there is an issue as to whether or not he falls within section 109(5)(h). Where there is an issue, that issue will be determined in favour of the defendant unless he has been convicted of an offence which establishes that at the time of the commission of the robbery he was in fact in possession of a firearm, or an imitation firearm, or he unequivocally admits that that is the position.
14. We consider that that is an outcome which is to be preferred to requiring the indictment always to contain an additional count of a firearm offence. If the indictment always had to include an additional offence of that sort then in practice section 109(5)(h) would add nothing to section 109(5)(g). Furthermore, it would mean that where an offender did not dispute that he had in his possession at the time of an offence a firearm or an imitation firearm, the indictment would have to be cluttered up with an extra count purely for sentencing purposes. Accordingly, we consider that it is only where there is an issue that that is required. We also consider that the fact that there is not an issue must be established to be abundantly clear from what happened in the court below. We recognise that this will mean inconvenience. In many cases it will involve looking carefully at the proceedings in the court before whom the appellant appeared. It will involve doing this not only with regard to the more recent offence (the later offence), but also in respect of the earlier offence to see if that offence is one which pursuant to section 109(5)(h) is a serious offence.
15. In our judgment, where a defendant is at risk of being subject to an automatic life sentence, that fact should be properly determined. It should not be left in doubt. If there is doubt about the position, whether it is the subsequent or the prior offence which is in issue, the matter must be resolved in favour of the defendant. The fact of the matter is that the language of section 109 of the Act has from time to time given rise to difficulties because of the intention of Parliament that for a second offence there should be an automatic life sentence. However, legislation is now proposed which will amend the present provisions of section 109. Those new provisions will mean that the problem created by section 109(5)(h) is no longer with us. In the meantime the approach that we have indicated will have to be adopted."
"16. In the case of Benfield Mr Hart, who was present in the court below, submits that it was clear beyond peradventure that there was no dispute. While we accept that that was the situation so far as the Crown was concerned, as those who appeared on behalf of the defendant in the court below apparently did not direct their minds to this issue we feel that the only proper approach to adopt is to treat the case as one where the requirement of establishing that the primary offence of robbery with which the court was concerned when sentencing this appellant was a serious offence was not satisfactorily established. Accordingly the consequence is that the life sentence which was imposed has to be set aside. The Recorder took the view that the proper determinate sentence should be one of eleven years' imprisonment. We see no reason why that should not be the determinate sentence that we now impose and we accordingly do so."
"18. The appeal of Sobers comes before us in unusual circumstances. It has already been before this court when the position with regard to other counts on the indictment was considered. This case involved a robbery which was alleged to be the second serious offence which was committed by the appellant Sobers and a co-accused. The co-accused had undoubtedly been in possession of a weapon. He had used the weapon, but as a club rather than as a gun. On the facts of that case Miss Marsh on behalf of the Crown accepts that it was not unequivocally established that section 109(5)(h) applied. As that subsection had not been established as applying, it was not appropriate for Sobers to be sentenced to life imprisonment as occurred. In his case the specified period was six years, which means that the appropriate determinate sentence would be twelve years. Mr Lithman, who appears on behalf of Sobers, accepts that that is the appropriate sentence. Accordingly the sentence of twelve years will be substituted for the life sentence which was imposed in the court below, which was the Crown Court at Norwich. The appeal will be allowed to that extent."