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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Crawford, R v [2017] EWCA Crim 1891 (02 November 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/1891.html Cite as: [2017] EWCA Crim 1891

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		2nd November 2017

Thursday 2^nd November 2017

LORD JUSTICE SIMON:

1. This is an application by Her Majesty's Attorney General for leave, under section 36 of the Criminal Justice Act 1988, to refer to this court sentences passed in the Crown Court at Sheffield on 18^th August 2017 as being unduly lenient. We grant leave.
2. On 13^th September 2016, at a plea and trial preparation hearing, the offender, now aged 26, pleaded not guilty to an indictment containing five counts, including causing grievous bodily harm with intent. His trial was fixed for 14^th July 2017, but that trial date was vacated about a week beforehand because no court was available. The case was set down for mention on 14^th July in order to fix a new trial date.
3. At the hearing, the offender invited the court (Mr Recorder Khan QC) to give a sentencing indication in the event of pleas of guilty to count 1, which was amended to charge attempted assault with intent to cause grievous bodily harm, and counts 3, 4 and 5. The court indicated that the maximum overall sentence that he could expect was a term of three years' imprisonment in the event that he pleaded guilty. The offender then pleaded to those counts.
4. On 18^th August he was sentenced by Mr Recorder Khan to the following terms of imprisonment: count 1, attempting to cause grievous bodily harm with intent, contrary to section 1 of the Criminal Attempts Act 1981, two years' imprisonment; count 3, causing criminal damage, contrary to section 1(1) of the Criminal Damage Act 1971, two months' imprisonment concurrent; count 4, having an offensive weapon, two months' imprisonment concurrent; and count 5, assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861, four months' imprisonment to be served consecutively. The total sentence was, therefore, a term of two years and four months' imprisonment.
5. The offences were committed some 18 months earlier. In the summer of 2016, Tara Powell entered into a relationship with a man named Shane Johnson. In December 2016, Ms Powell and Mr Johnson had a row and they broke off the relationship.
6. On 5^th January 2017, Ms Powell started to see the offender. They went out for dinner together and he took her for a few rides in his car.
7. On the evening of 8^th January 2017, Ms Powell went out for the evening with the offender, one of his friends and one of her friends. By about 2am the offender said that he was tired. She gave him the keys to her flat and he went back there alone. She stayed out without him. As he left to go to her flat, Ms Powell's friend noticed that the offender seemed to be quite drunk. By about 5.30am Ms Powell had still not returned home.
8. Mr Johnson was driving past her flat in his work van when he saw that her lights were on. Thinking that she might be awake, he pulled over and went into her flat through the unlocked front door. He wanted to talk to her about their relationship. Instead of finding Ms Powell, he found the offender lying on her bed. This angered him.
9. At about the same time Ms Powell returned home in the company of her friend and another man called Alex. Ms Powell told Mr Johnson to leave. He asked her to come with him in his van because he wanted to talk to her. She agreed, and left the flat with him. The two of them got into his van and he drove it around the corner so that they could talk privately.
10. The offender decided to go after them. The man called Alex warned him not to, but the offender ignored him. He got into his car and drove off at speed, looking for Mr Johnson's van. He found it and pulled up alongside it. Ms Powell and Mr Johnson were still inside. The offender revved his engine and then sped off. A short time later Mr Johnson drove himself and Ms Powell back to her flat. He parked his van and they both got out. They stood on the street outside her door smoking a cigarette with Alex and Ms Powell's other friend. Two neighbours were also there, having been awakened by the sound of the offender driving off in his car. At this point the offender's car re-appeared. He drove it along the road, onto the pavement and into contact with the group who were standing outside Ms Powell's flat. The car hit Ms Powell, forcing her underneath the front of the car. It also hit Mr Johnson. Those were facts giving rise to count 1. The offender's car narrowly missed her front door before it collided with Mr Johnson's van (count 3). Ms Powell sustained a cut to her right eyebrow, which was glued, and a 3cm laceration to her foot which revealed an open fracture to her left metatarsal. Fortunately, in time, she made a full recovery from those injuries.
11. Mr Johnson was also injured in the impact. He suffered a laceration to the end of his non-dominant ring finger and a crushing injury to the base of the same finger which required surgery. The damage to his employer's van was extensive. The cost of repair was about £3,000.
12. After the impact, the offender got out of his car. Ms Powell was still trapped under the vehicle. He was armed with a wheel brace (count 4) with which he struck Mr Johnson in the face, causing a superficial laceration to his right cheek and bruising to his shoulder (count 5). Mr Johnson ran off, but the offender chased him. Mr Johnson then pretended to arm himself with a brick which prompted the offender to turn and run. Mr Johnson chased him until the police arrived on the scene and arrested the offender.
13. On arrest, the offender said "I don't know what I've done, I don't know what I've done. I'm shitting myself". He failed a roadside breath test. He was taken to Doncaster Police Station, where a formal test revealed that there were 52 micrograms of alcohol in 100ml of his breath (the legal limit being 35 micrograms).
14. In his police interview the offender said that Mr Johnson had been aggressive towards him when he found him in Ms Powell's bed. When she left with him, he had gone after her to make sure that she was okay. He drove around the streets looking for them. He lost control of the car. That was how he came to collide with the group. He had a tyre iron in order to defend himself because Mr Johnson started to attack him. Those explanations were plainly untruthful in the light of his later guilty pleas.
15. A police collision investigator found that at the time of the collision visibility was good and the road surface was wet. The wheels on the Peugeot were positioned straight ahead, so it was clear that the offender had not tried to steer the car. When the car hit Mr Johnson's van, it had been travelling at about 31mph. There was no distension in the brake lights of the car, which suggested that the brakes had not been used before it struck the van. It was plainly a deliberate act.
16. At the time of sentencing the offender had two convictions from 2008, for offences of assault occasioning actual bodily harm and battery, and a penalty notice from 2010 for an offence of possession of cannabis.
17. There were no victim personal statements. At the hearing on 14^th July, when the sentencing indication was sought, prosecution counsel submitted, in respect of count 1 and the Definitive Guideline for assaults, that there was greater harm on account of the injuries that could have been caused and higher culpability on account of the use of the car deliberately to strike the victim. Defence counsel agreed that there was higher culpability, but he submitted that, as regards Ms Powell, this was lesser harm. The Recorder appears to have agreed with him.
18. Mr Jarvis, who appears on behalf of the Attorney General, submits that this gave a starting point on count 1 of six years' imprisonment, with a range of five to nine years for the completed offence.
19. The Recorder felt that the offender's personal circumstances and his relative good character amounted to powerful mitigation, which meant that on a guilty plea being entered forthwith, the inevitable prison sentence would be no longer than three years. The offender then pleaded guilty. Thereafter, the case was adjourned for the preparation of a pre-sentence report.
20. The pre-sentence report was dated 16^th August. In his interview with the author, the offender maintained that he had not driven directly at the victims. He claimed to have lost control of his car. Mr Johnson then came towards him. The offender swung the wheel brace in an attempt to put some distance between them. He said that he had not intended to hurt him. The author concluded that the offences arose out of the offender's jealousy. The offender recognised the impact of his actions on the victims. He said that he was appalled and disgusted by his behaviour. The risk of re-offending was assessed to be low. The author went on to suggest some possible community requirements should the court be minded to impose a community order or suspension of any sentence of imprisonment. Those suggestions are recognised to have been unrealistic.
21. At the sentencing hearing the Recorder said that, having heard the facts opened and mitigation in full, the final sentence would be lower than the indication given on 14^th July. He proceeded to sentence the offender on the basis that what had occurred on 9^th January was an aberration on the offender's part. He accepted that the offender had learned a valuable lesson and he afforded him credit of 25 per cent for his guilty pleas. He then sentenced him to a total term of 28 months' imprisonment. Up to that time the offender had been on bail with no qualifying conditions.
22. The Attorney General argues that the sentences were unduly lenient. As to count 1 (attempting to cause grievous bodily harm), even accepting the Recorder's conclusion about the level of harm, this was a category 2 case with a starting point of six years' imprisonment and a range of five to nine years. The seriousness of the offence was aggravated by a number of features which are identified by the Attorney General as being: (a) the location of the offence – outside Ms Powell's home; (b) the timing of the offence – in the early hours of the morning during darkness; (c) the presence of others – there were three other people in the group talking outside the flat; (d) the failure to respond to warnings – he had been told by Alex not to drive because of his inebriation; and (e) the commission of the offence whilst under the influence of alcohol.
23. As to mitigation, it is recognised that the offender's convictions were of some age; he was still relatively young; he had expressed remorse to the author of the pre-sentence report; and there was evidence that he was a hard worker who had learned a valuable lesson from this experience.
24. Nevertheless, it is submitted for the Attorney General that balancing the aggravating and mitigating features should still have resulted in a sentence on count 1, after trial, in the order of six years' imprisonment. The actual sentence, removing the discount of 25 per cent for the guilty plea, was in fact 32 months (less than half that figure).
25. As to count 5 (causing actual bodily harm), this was a category 1 case because there was greater harm, a repeated assault – first with the car, then with a tyre iron – and higher culpability (the use of two weapons). So the starting point was 18 months' custody, with a range of one to three years. Again, on the assumption that matters of aggravation and mitigation largely balanced each other out, it is submitted on behalf of the Attorney General that the final sentence on count 5 should have been in the region of 18 months' imprisonment after a trial. The actual sentence, removing the discount of 25 per cent for the guilty plea, was a little over five months.
26. It is further submitted that the seriousness of the offence on count 4 (having an offensive weapon) should have been reflected in the sentence on count 5. Count 3 (causing criminal damage) involved a third victim (Mr Johnson's employer) and a cost of £3,000 which had to be paid by the employer's insurers.
27. Taking into account totality, the Attorney General submits that the overall sentence on counts 1, 3, 4 and 5 should have been of the order of seven years' imprisonment, before making any reduction by way of credit for the pleas of guilty.
28. As to credit, Mr Jarvis submits that 25 per cent was too high. The guilty pleas were tendered ten months after the initial arraignment, but in advance of what would have been the adjourned trial date. In these circumstances, credit should have been limited to 15 per cent. Although the count of attempting to cause really serious harm with intent (count 1) was added to the indictment on 14^th July 2017, the offender could have pleaded guilty to causing serious injury by dangerous driving at an earlier date, but chose not to.
29. For the offender, Mr Hughes submitted that the sentences were lenient, but not unduly so. He made a number of further submissions: first, that the offence under count 1 was charged as an attempt to cause grievous bodily harm and that, on conventional sentencing principles, an attempted offence will ordinarily attract a shorter sentence than a competed offence, because the harm is usually less serious. He referred to the judgment of this court in Attorney General's Reference No 2 of 2015 (Silva) [2015] EWCA Crim 1965 at [29].
30. Secondly, in relation to the Attorney General's characterisation of the offending as falling within category 2 of the guideline – lesser harm and greater culpability – with a starting point of six years' custody, Mr Hughes points out that the guideline assumes that grievous bodily harm was caused. That was not so here. It followed that there was no basis for a starting point of six years.
31. Thirdly, he referred to what he submits is a comparable case, Attorney General's Reference No 98 of 2002 [2003] EWCA Crim 1018, where this court concluded that a sentence of three and a half years' imprisonment was an appropriate sentence, but declined to vary the original sentence of two years.
32. Fourthly, so far as the impact on the victims are concerned, Mr Hughes points out that Ms Powell said that she did not want to make a statement. The assault had affected her at the time, but she did not feel that she had any long-term issues about it. Mr Johnson said that he was more concerned about the effect on Ms Powell and that he was not affected by the assault, other than financially in view of the damage to his hand.
33. Fifthly, Mr Hughes points out that guilty pleas had been offered to various offences, but that there had been no meaningful response from the prosecution until 13^th July, the day before the trial was vacated. In the light of the changes in the charges, and a late amendment to charge the attempted section 18 offence, it was open to the Recorder to have regard to the fact that the offender had been willing to accept substantial culpability for the offending. The pleas had the effect of meeting the objectives of the Sentencing Council Guidelines in respect of reduction of sentence for a guilty plea. The victims had not needed to attend court; and a trial, which would otherwise have been listed six months ahead, did not take place. The Recorder gave his reasons for granting 25 per cent credit, he took into account relevant matters and did not take into account irrelevant matters.
34. Sixthly, Mr Hughes submits that there was considerable mitigation available to the offender: there was genuine and immediate remorse (albeit not well articulated). Although he had previous convictions, these were for offences committed when he was aged 17. His prison report, dated 27^th September 2017, was positive.
35. Finally, Mr Hughes submits that the offender pleaded guilty to these offences following an indication from the court that he would not receive a sentence of over three years' imprisonment.
36. We have considered these submissions and we would make some preliminary observations. First, the fact that an advance indication of sentence was sought and obtained does not prevent the Attorney General from inviting this court to review any resulting sentence: see R v Goodyear [2005] 2 Cr App R 20 at [71]. Those advising offenders in relation to seeking a Goodyear indication should warn their clients accordingly.
37. Secondly, it will seldom assist this court, when reviewing sentences, to refer to cases that precede the Criminal Justice Act 2003 and the published guidelines of the Sentencing Guidelines Council and Sentencing Council. Not only were the facts of Attorney General's Reference No 98 of 2002 very different to the present case, the whole approach of the court was different to what it would now be.
38. Thirdly, the charge of an attempted offence will ordinarily call for a lesser sentence than the completed offence. This is because the harm caused, whatever the intent, is likely to be less. Here, we recognise that injuries were in fact caused to Ms Powell and Mr Johnson, as we have described them.
39. Fourthly, in a case such as the present, where a number of offences were committed in a relatively short space of time, it is particularly important to consider the overall sentence.
40. Fifthly, this court will not in general be disposed to review in detail credit given in the Crown Court for guilty pleas. These are very much a matter of judgement for those sitting in the Crown Court.
41. We turn to the facts, starting with count 1. The offender used his car as a weapon. That is a specific aggravating feature which plainly increased the level of culpability. The car was driven at speed, deliberately, at the victims and with intent to cause Ms Powell and Mr Johnson serious harm. The fact that no really serious harm was in fact caused was purely a matter of chance. Having driven at them and harming them, the offender caused substantial damage to Mr Johnson's employer's vehicle. He got out of the car, took hold of a wheel brace and attacked Mr Johnson, causing an injury to his face.
42. In our view, these offences taken together called for a sentence of not less than five years' imprisonment, even with the benefit of the offender's personal mitigation, before giving credit for the guilty pleas and making allowance for totality. The offender may have been fortunate in the view that the Recorder took about the extent of credit to which he was entitled for his pleas of guilty but, in the circumstances, we do not accept the Attorney General's invitation to go behind the credit of 25 per cent given in the Crown Court.
43. In our view, the overall sentence should have been a term of three years and nine months' imprisonment, and not two years and four months. Accordingly, we quash the sentence of two years' imprisonment on count 1 and substitute a sentence of three years and five months. The other sentences will remain unaffected.