General sentencing issues

Perverting justice to evade driving regulations

When a police officer stopped W. who was driving a van shown as uninsured, he claimed to be RH, giving that man’s correct date of birth. A computer check of RH’s driving licence indicated someone with some resemblance to W. and RH was duly prosecuted for driving without insurance. When RH’s partner complained that he was not the driver of the van and had been unsuccessfully prosecuted previously in an identical case of impersonation, the true identity of the driver was established and W. was prosecuted for perverting the course of justice. Aged in his late 30s, he had accrued numerous convictions between 1994 and 2011 for a range of offences, principally acquisitive property crime but including a previous instance of perverting justice and multiple driving offences. He had a record of non-compliance with court orders. A pre-sentence report (PSR) reported that latterly he had been seeking to earn a living through legitimate employment as a driver but had been struggling financially. He had no driving licence. It was not clear how he had any knowledge of RH and it could not be established that it was him who had sought to impersonate RH for insurance violation previously. Identifying the need for deterrence, the judge had referred to W.’s ‘do as you please attitude’, describing him as ‘a chancer with no regard for the law’.

On W.’s appeal against 12 months’ immediate custodial sentence following guilty pleas (including driving without licence or insurance), the Court of Appeal noted the absence of a sentencing guideline or any guideline cases for perverting the course of justice but stated that ‘it is well established that an offence of this nature will almost inevitably require a sentence of immediate custody’. The key considerations are the seriousness of the substantive offence to which the attempted deception relates; the degree of persistence in the conduct in question; and the success or otherwise of the attempt. In this instance, W. had allowed the ploy to continue for several months until the truth was uncovered. While the impact upon RH could not be said to be severe, ‘the stress on an innocent person who finds this happening to him for a second time is a real factor’. W. had ‘armed himself with the identity of Mr H. which he had acquired in circumstances which we do not know, but which on any view are suspicious, in case he was stopped by the police’, thus indicating deliberate planning and premeditation. ‘To give the name of a real individual is considerably more serious than the case of a driver who panics when stopped by the police and on the spur of the moment decides to give a fictitious name’. His record was a significant aggravating factor; though he had sought to change through pursuing employment he had opted to save the expense of driving lawfully. Sentence had not been manifestly excessive and the appeal was dismissed.

R v WRIGHT, [2020] 1 Cr App R(S) 44.

Possibility of restorative justice initiative: Sentencer’s powers unfettered

Having attended a night-time party where he drank heavily and took cocaine B., then aged 17 and with no criminal history, set fire to the garage forming part of a nearby semi, home of a couple and their infant daughter, the woman occupant, a teacher, being six months pregnant. Awoken by the noise they had been obliged to evacuate their property in much fear, at one stage being additionally terrified and obliged to retreat back inside on seeing B. sat in their garden. The fire caused damage costing £17,000, and the woman’s teaching notes accumulated over her 12-year career were destroyed.

Following guilty plea at the preliminary Crown Court hearing, 15 months following the crime, to arson being reckless as to whether life is endangered, B.’s case was adjourned for a PSR. This noted that he had expressed a desire personally to apologise to the victim. At the ensuing sentencing hearing, the possibility was raised whether there might be scope for restorative justice through a meeting between B. and the victim. Though B. was willing to participate, this had not been canvassed with the woman (she being treated as the person most affected by the fire), but the judge observed that restorative justice might be beneficial to her and might, depending on the outcome of the process, be beneficial to B., telling him: ‘all I can say to you is that if it is successful it will be something that will be of benefit to you and well worth adjourning for these purposes’. B. was bailed accordingly, but the victim declined the opportunity. He was by then aged 19. At the ensuing hearing, the judge stated that an adult who contested guilt would incur six years’ imprisonment, but he had regard to B.’s age, plea, other mitigation, and the considerable delay from point of crime. He further concluded that the offence was so serious that suspension of sentence could not be justified.

On B.’s appeal against 24 months’ young offender institution (YOI) detention, it was argued on his behalf that when sentencing was adjourned to explore the possibility of restorative justice, though no explicit undertaking had been given, he had gained a legitimate expectation that thereafter he would receive a suspended sentence. The fact that the initiative had not proved viable had been through no fault on his part. The Court of Appeal was unpersuaded, observing that there could have been no legitimate expectation that if the victim declined to participate in restorative justice, he would in any event receive a suspended sentence. The judge had taken B.’s remorse properly into account. The sentence was upheld.

R v BLYTH, [2020] 1 Cr App R(S) 60.

Prospect of drug rehabilitation: Limit to lenience

Observed by police to be supplying items to others in public with the appearance of drug dealing, T. was found to be in possession of wraps of heroin and crack, plus a lock knife and a large sum of cash. Aged in his mid-30s, he had numerous prior convictions from adolescence, mainly for acquisitive property crime (including residential burglary), though none for drug supply. He had failed to comply in the past with community orders. Around two years prior to his present offending, he had been made subject to a suspended sentence order (SSO) for handling and driving while disqualified. Having breached that order by reoffending (theft and racially aggravated disorder), he had incurred a further SSO, with a drug rehabilitation requirement (DRR). Having breached that order, his SSO was allowed to continue but with a longer operational period. He had breached the order again and at the time of his current offending had been subject to an unexecuted warrant for his arrest in further breach proceedings. In due course, he pleaded guilty on re-arraignment to two offences of possession of a controlled drug with intent to supply, plus possessing criminal property (the money) and a bladed article.

A PSR relayed T.’s account of a long history of drug abuse since childhood, often funded by crime. Recently, he had been able to fund his habit through legitimate earnings as a plasterer, but his employer had gone on an extended holiday, leaving him without work or income. In consequence, he had incurred a drugs debt which he was repaying by supplying drugs. He claimed that he had forgotten that he had the knife in his rucksack and that the cash found on him had been given to him by his partner’s mother (at odds with his guilty plea). He expressed his wish to address his drug abuse and to sustain his role as partner and father of their young daughter and to resume paternal contact with an older child by a previous relationship. He had been making use of drug support while in custody, being currently prescribed methadone. He was assessed as posing a high risk of reoffending and a medium risk of harm to the public. Given T.’s history of poor response to supervision in the past, the PSR expressed concern about his ability to comply with a further DRR. A drugs recovery worker who had been working with T. supported a further DRR initiative.

Applying the relevant sentencing guideline (2012), the Crown Court judge determined that T. had played a significant role in a Category 3 offence, thus indicating a starting point of four-and-a-half years’ imprisonment, with a range between 42 months and seven years. The judge considered that his offending fell ‘towards the bottom’ of that range. Noting that T.’s offending appeared to stem from very real difficulties in his upbringing and the gaps in his criminal record, and determining that immediate custody would not promote his recovery and that, ‘given another chance, one might well see you not doing this type of offending again’, the judge imposed a total of two years’ imprisonment, suspended for two years, with a six-month DRR plus a rehabilitation activity requirement and 50 hours of unpaid work.

On reference by the Attorney General on grounds of undue lenience, it was submitted that, far from being at the bottom end of the range, T.’s offences were aggravated by his previous convictions, plus his possession of a knife and a sum of money indicative of the scale and frequency of his dealing. His sentence should not have been less than three years and four months’ imprisonment (after credit for plea) and accordingly there had been no scope for a suspended sentence. In response, T.’s counsel drew attention to the part of the Guideline indicating:

Where the defendant is dependent on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a [DRR]…can be a proper alternative to a short or moderate length custodial sentence.

R v TAME (ATTORNEY GENERAL’s Reference), [2020] 1 Cr App R(S) 62.