Neutral Citation Number: [2010] EWCA Crim 2802
Case No: 201002764 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 9th November 2010

B e f o r e:

LORD JUSTICE PITCHFORD 

MR JUSTICE HENRIQUES 
 
HIS HONOUR JUDGE MILFORD QC 
(Sitting as a judge of the Court of Appeal Criminal Division)
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 R E G I N A 

v 

DARYL ROBERT NEWMAN
 
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Miss J Josephs appeared on behalf of the Appellant 
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J U D G M E N T 

1.	JUDGE MILFORD:  As long ago as 11th February 2008 in the Crown Court at Chelmsford this appellant pleaded guilty to two offences of aggravated burglary and was sentenced by His Honour Judge Fenn to imprisonment for public protection with a minimum term of three years and six months to serve, less 86 days spent on remand.  A community order was revoked.  He appeals against that sentence with leave of the single judge, who also granted leave to appeal out of time.
2.	The first of the offences occurred in the early evening of 17th October 2007 at 2 Castle Road, Clacton‑on‑Sea, the home of Mr Bidder, his partner, Ms Lawson, and their three‑month‑old child.  There were knocks at the door which were ignored.  Then the appellant and another man appeared in the sitting room.  Mr Bidder was ushered through to the bedroom, where Ms Lawson was at the time.  Mr Bidder was struck by the other man with some sort of weapon and fell to the floor.  When the appellant said, "Give us the clothes or I'll fucking kill you", he held a knife to his throat.  Mr Bidder and Ms Lawson were then imprisoned in the bedroom whilst the other man took designer clothing to the value of about £1,000 from various places in the house.  A particularly unpleasant aspect of the offence was that during this time the baby was in the sitting room and Ms Lawson was not permitted to leave the bedroom to go to her child, despite asking to be permitted to do so.
3.	The appellant and his partner then left the house, the appellant offering an apology.  They were seen to get into a vehicle.  Ms Lawson obtained part of the registration number and a vehicle with the same number was found burnt out a couple of days later.  
4.	Mr Bidder suffered a swollen graze to the right side of his face, some swelling to the back of his head and a sore shoulder.  He was fearful during the incident that he would be stabbed and was very scared of what might happen to Ms Lawson and their baby.  
5.	The second offence occurred on 6th November 2007 at 16 Frietuna Road, Frinton.  The appellant knocked at the door and asked directions for a nearby address.  Mr Stotton, as an act of kindness, went to find a map which he passed to the appellant.  The door was on the security chain.  When Mr Stotton was distracted a second man obtained entry to the house through a side door and attacked Mr Stotton from behind.  The front door was unchained, the appellant entered and both men had knives.  The second man went upstairs and confronted the elderly Mr Stotton senior, who was in bed and had difficulties with mobility.  It was clear that the burglars were convinced that there was a large quantity of money in the house.  The second man ripped a door off a wardrobe and stabbed Mr Stotton senior in the leg with an umbrella, it would seem to reinforce his demands for the whereabouts of the money.  Mr Stotton junior was fighting with the appellant downstairs and managed to disarm him, leave the house and raise the alarm.  Nothing, in the event was stolen.  Both father and son suffered injuries which were illustrated in photographs which are not before this court.
6.	Following the appellant's arrest he was interviewed and admitted both offences, but sought to minimise his part in what took place.
7.	At the time of sentence the appellant was 24 years of age.  He had a number of previous convictions and was sentenced to 42 months in 2003 for dwelling house burglary.  He had never previously been convicted of an offence of violence.  
8.	There was no pre‑sentence report available at sentence.  The judge had decided to proceed without a report, and no criticism is made of him for reaching that decision.  The single judge, however, ordered a pre‑appeal report which is available to the court.
9.	In sentencing, the judge highlighted the serious aspects of the offence and then turned to the issue of dangerousness.  Both offences were serious specified violent offences.  Addressing himself to the appellant's record and gravity of the offences for which he had to pass sentence, both of which involved knives and were close to each other in time, he found that the appellant was dangerous within the meaning of section 225(1)(b)(iii) of the Criminal Justice Act 2003 and so it was that he passed the sentence of imprisonment for public protection.
10.	Turning to the minimum term, he gave him full credit for his pleas of guilty, his age and progress made on remand, during which time he had come off drugs.  He found that the appropriate sentences for the two offences were three and four years consecutive, but as he was passing a sentence of imprisonment for public protection he had to set a minimum term which was one half the commensurate sentence.  He passed concurrent sentences on each count with a minimum term on each of three years and 182 days, from which he deducted 86 days on remand and so arrived at a minimum term of three years and 96 days.  No complaint is made about the minimum term.
11.	Turning to the grounds of appeal, it is submitted that in the absence of any pattern of offending or any suggestion of dangerousness in a pre‑sentence report, it was not open to the judge to make a finding of dangerousness.  The facts of the offences were not so gross as to give rise to such a finding and his record showed no tendency to act violently.  
12.	The report ordered by the single judge has been prepared by Denise Stow, Probation Officer, and is dated 5th November 2010.  She had access to previous OASYS risk assessments which demonstrated that at the time of the offences the appellant was assessed as a high risk of causing serious harm.  Her own assessment was in accord with those assessments.  
13.	This clearly confirms the finding made by the sentencing judge.  These were grave offences, involving planning, the invasion of occupied homes and the use of weapons, in particular knives.  They were committed in quick succession and against a background of abuse of crack cocaine and alcohol.  The appellant was under the influence of both those substances when he committed the offences.  He had poor self‑control and anyone who under the influence of crack cocaine invades the home of a young family, holds a knife to the throat of a householder and then only days later, in similar circumstances, invades another home with a knife is likely to fall within the definition of dangerousness set out in the 2003 Act.  The judge's finding that there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences was entirely justified.  
14.	So it is that in the alternative it is submitted by Miss Josephs today, on the appellant's behalf, that he has made considerable progress when serving the sentence and we should make a judgment on risk as it is now.  A short report from the prison shows that the appellant has undergone a number of courses.  He has tested negative for drugs and presents no problem to the staff or inmates, save for an adjudication for not complying with a healthcare compact.  Staff confirmed to the reporting probation officer that the appellant was compliant and polite to staff and inmates.  
15.	We are not persuaded by that argument.  The right sentence was imposed and it will be a matter for the Parole Board to consider when the appellant is safe to be released.  The Parole Board will have far more information at their disposal than this court to make this important decision.  
16.	We are, however, encouraged to read of the progress that the appellant has made whilst on remand, and in particular the number of courses he has completed successfully, which are listed in the short report: Enhanced Thinking Skills, Level 2 Numeracy, Level 2 Literacy, Level 2 Business Enterprise, Level 1 IT, Level 2 Mentoring Skills, Crack and Cocaine Awareness Course, Relapse Prevention Course, Drug Awareness, Personal Social Development.  
17.	He must now be approaching the moment when he is considered for parole and we will direct that the two reports which are before the court should return to the prison with him so that they may be considered by the Parole Board.  The appeal is dismissed.