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Crime – Case Law Update – April 2024

24/04/2024

This edition of the case law updater is compiled by Fatima Jama and Georgia-Mae Chung.

Feve [2024] EWCA Crim 286

Perverting the course of justice – Suspended sentence – Immediate imprisonment – Unduly lenient – Application for leave to refer – Granted

This was an application by His Majesty’s Solicitor General, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case of Mr Feve (“the offender”) to the Court of Appeal so that his sentence may be reviewed. The offender had been convicted after trial at Kingston upon Hull Crown Court of doing an act tending and intended to pervert the course of public justice. He was sentenced to 12 months’ imprisonment, suspended for 12 months with a requirement of 200 hours’ unpaid work.

The facts giving rise to the offence were that the offender’s stepson (“KF”) was a murder suspect. Shortly after the death at around midnight on 19/20 March 2023, KF had travelled to the offender’s home where he changed his clothes and left soon afterwards. The offender later spoke to investigating officers and made a formal witness statement within which he denied that KF had been at his home.

The offender had no previous convictions. He had treated KF as his own son and cared for him and his other children as a single parent for many years. He lived with his 19-year-old daughter and 17-year-old son in rented accommodation, which he feared they would lose if he was imprisoned. The judge placed the offence in category A3 and decided that the sentence could be suspended, as he was satisfied that the offender could be rehabilitated, that his risk could be managed in the community, and that an immediate custodial sentence would have a devastating effect upon him and his family.

It was submitted by the Solicitor General that the sentence was unduly lenient because appropriate punishment could only be achieved by immediate imprisonment and there were no exceptional circumstances which could justify suspension of the sentence. They relied on case law to make this point and submitted that the principle that it established was not altered by the Perverting guideline that had come into effect on 1 October 2023.

The Court of Appeal referred to the case of R v Abdulwahab [2018] EWCA Crim 1399:

[14.] “… conduct which tends and is intended to pervert the course of justice strikes at the heart of the administration of justice and almost invariably calls for a custodial sentence.”

[20.] “The Sentencing Council’s Imposition Guideline specifically indicates that a factor indicating that it would not be appropriate to suspend a prison sentence is where appropriate punishment can only be achieved by immediate custody. That is so in this case. and will be so in most cases of attempting to pervert the course of public justice.”

The Court also referred to Attorney-General’s Reference (R v Graham) [2020] EWCA Crim 1639:

[21.] “Overall the general trend of the authorities is that in cases of perverting the course of justice an immediate custodial sentence is almost invariably to be imposed. Although the language varies somewhat from case to case, that is the gist of all the authorities. Accordingly, there needs to be a high degree of exceptionality if an immediate custodial sentence is not to be imposed for such offending.”

The Court of Appeal held that the sentence was unduly lenient and so granted the Solicitor General leave to refer. However, it did not use its discretion to increase the sentence:

[20.] References to “exceptional circumstances”, and cognate terms, are a convenient shorthand; but in our view they simply emphasise that there will be few cases in which the normal consequence of immediate custody can properly be avoided, and that very compelling reasons will be needed if immediate custody is to be avoided.

[22.] The guideline thus reflects, and does not alter, the established principles as to the inherent seriousness, and usual consequences, of such offences.

[23] Must the custodial sentence be of immediate effect? If the appropriate sentence exceeds 2 years, it can only be immediate. Where, however, the application of the Perverting guideline leads to a custodial sentence of 2 years or less, the sentencer is then required by the Imposition guideline to consider, amongst other things, whether the sentence can be suspended… In the great majority of cases of perverting the course of justice, the most important factor will be one of those which indicate that it would not be appropriate to suspend: namely, that appropriate punishment can only be achieved by immediate custody. That is so because, consistently with the long-established principles we have mentioned, and giving substantial weight to the need to deter others, the inherent seriousness of such offences usually does require immediate custody, and this factor will accordingly outweigh all others. It is important to emphasise that that is the usual position even when – as will not infrequently be the case – the offender has a realistic prospect of rehabilitation, has strong personal mitigation, and immediate custody will result in a significant harmful impact upon others.

[25] Returning to the present case, the judge was faced with a difficult sentencing decision. There was much to be said in the offender’s favour: his crime had not greatly impeded the administration of justice, he had arranged for Kian Feve to go to the police, he had substantial personal mitigation, and others would suffer if he went to prison. But on the jury’s verdict, he chose to tell a deliberate lie to the police investigating a crime which he knew must be serious, and which was in fact a crime of murder. We would add that he told a lie which brought his younger son into the false alibi which was put forward. He did not have the mitigation which would have been available to him if he had pleaded guilty. In our judgement, and with all respect to the judge, the offence was so serious that appropriate punishment could only be achieved by immediate imprisonment. A suspended sentence was not within the range properly open to the judge and was unduly lenient. We therefore grant leave to refer.

[26] The question then arises of whether this court should exercise its discretion not to increase the sentence. We have given this anxious consideration. We bear in mind the offender’s compliance to date with the suspended sentence order, including his diligent performance of the unpaid work requirement, and his deteriorating health. We also bear in mind the likely housing and other long-term consequences for him and his children of our now imposing immediate imprisonment. We conclude that we can properly exercise our discretion in the offender’s favour.

Young [2024] EWCA Crim 251

Appeal against sentence – Granted – Manifestly excessive – Attempted rape

This was an appeal against sentence that was imposed at Bristol Crown Court on 31 August 2023. Mr Young (“Y”) was sentenced for attempted rape (count 1), trespass with intent to commit a sexual offence (count 2) and assault occasioning actual bodily harm (count 3). The appeal was only against sentence for count 1 for which, following an assessment of dangerousness, Y received 17 years imprisonment comprising a custodial term of ten years with an extended licence period of 7 years.  The appeal was on the ground that the sentence was manifestly excessive.

The facts were that Y and the complainant (“V”) had previously been a relationship and had a daughter together, who was nearly two years old at the time of the offences. V had ended the relationship around a month and a half prior and Y had supervised contact with their child. Y attended outside V’s home address at around 5:30am when she and their daughter were asleep inside. V told Y to leave repeatedly but Y continued to try to gain access, culminating in him smashing a window and entering through it.

V fled to the bedroom where their daughter was sleeping. She tried to block Y’s entrance to that room using a detached door frame, but he was still able to enter. He pushed V onto the bed and punched her to the head. He then repeatedly touched V’s vulva and told her that he was going to rape her. He followed her to the lounge, as she attempted to escape with their daughter, ripped off V’s knickers and tried to penetrate her with his fingers. At times he had his hands down his trousers, but he did not expose his penis.

The judge accepted that the offence included factors that put it into level 2 harm but stated that it was significantly aggravated to the point of level 1 harm by his previous convictions, the presence of his daughter, and the fact that the offence was domestic. They considered Y’s addiction to drink and drugs and his remorse. However, the sentence was not adjusted on account of this being an attempted rape:

[17.] Balancing all of those features, I have no hesitation in concluding that this is in effect a sentence in category 1B. I bear in mind Mr White’s submission that I must have measured regard to the fact that this is an attempted offence rather than the full offence. I bear that submission in mind but, in my judgement, the particular facts of this case are so unusual that in fact there is very little difference between the full offence and the attempted offence, particularly when seen through the prism of you breaking into your former partner’s home in the presence of her child and sexually assaulting her very violently in the presence of your daughter.

The Court of Appeal held that the original sentence for count 1 was manifestly excessive and the appeal should be allowed. This was on the basis that there should have been a downward adjustment to reflect the fact that this was an attempted rape, which had ended before the police arrived, and during which Y had note exposed his penis. The judge’s assessment of dangerousness was not criticised. The original sentence was quashed and substituted with an extended sentence of imprisonment of 15 years comprising a custodial element of 8 years and an extended licence period of 7 years:

[26.] Given the facts here the judge was entitled, in our judgement, to conclude that the seriousness of the case merited moving upwards to the level of a 1B offence for which the starting point is 12 years with a range of 10 to 15 years custody. Having done that the factors justifying the upward movement were not available again to aggravate the case further to 13 years.

[27.] Mr White contends that the attempted rape was less serious that the full offence and that there should have been a downward adjustment to reflect that. It is right that V has not specifically referred to any significant medical or mental health effect post the events however rape or attempted rape in any context are very serious offences. How an individual reacts to an attack of a sexual nature will vary from person to person and over time. That said, this was an attempt, where the appellant never exposed his penis and where the incident had ended before the police arrived. In these circumstances a downward adjustment to reflect the uncompleted offence was required.

Attorney General’s Reference on a Point of Law No 1 of 2023 [2024] EWCA Crim 243

Protesters – Criminal damage – lawful excuse – Clarification on law

In this case, the Court of Appeal considered the defence of “lawful excuse” in the context of criminal damage committed by protestors. The defendant (C) was acquitted in the Crown Court of conspiracy to damage property contrary to section 1(1) of the Criminal Law Act 1977. Pursuant to section 36 of the Criminal Justice Act 1972, the Attorney General referred to this Court two points of law said to have arisen in C’s trial and upon which they desired the opinion of the Court. The questions for the Court of Appeal was whether it is proper to leave such defences to a jury and, more specifically, whether a jury could consider these factors:

[3.] “1. What matters are capable, in law, of being the “circumstances” of destruction or damage under section 5(2)(a) of the Criminal Damage Act 1971? In particular,

a. if the destruction or damage is an act of protest, are “circumstances” in the phrase “the destruction or damage and its circumstances” capable as a matter of law of including the merits, urgency or importance of any matter about which the defendant may be protesting by causing the destruction or damage, or the perceived need to draw attention to a cause or situation?

b. if there is no direct nexus between the destruction or damage and the matters on which the defence rely as “circumstances”, can those matters still be “circumstances” within the meaning of the phrase “the destruction or damage and its circumstances”?

2. Was the Judge right to rule:

a. before the case was opened to the jury; and

b. at the conclusion of the evidence that the defence should not be withdrawn from the jury?”

It was held:

[65.] “In those circumstances, we provide the following answers to the first questions of law posed by the AG:

i) “Circumstances” in the phrase “the destruction or damage and its circumstances” do not include the merits, urgency or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation.

ii) “Damage and its circumstances” means the damage and the circumstances of the damage which, in protest cases, means the fact that the damage was caused as part of a protest (against a particular cause).

We decline to answer the second question posed in the Reference but have set out above our views on the point of law which arises.” (see paragraph 52).

Anderson [2024] EWCA Crim 253

Possession with intent to supply class A drugs – Appeal against sentence – Mandatory minimum sentence – Ill-health – Refused

The applicant sought an extension of time of 234 days and leave to appeal against sentence. The facts of the case are as so; the applicant pleaded guilty at a Plea and Trial Preparation Hearing to two counts of possession with intent to supply class A drugs and was sentenced to a determinate sentence of 67 months for each count. Although not stated, it was implicit from the sentencing remarks that the two sentences were ordered to be served concurrently. The applicant had been convicted of previous class A drug trafficking offences on 25 September 2014, 12 March 2015 and 30 April 2018.

The offences are defined in s.313(5) of the Sentencing Act 2020 (“the Act”) as offences of class A trafficking. In accordance with subsection (2) of s.313 of the Act, the judge was obliged to impose an appropriate custodial sentence of seven years, unless the court was of the opinion that there were particular circumstances which related either to the offence or to the offender that would make it unjust to do so in all the circumstances.

In his sentencing hearing, the applicant sought to argue that the seven-year minimum term should be dis-applied on two grounds. Firstly, it was submitted that it would be unjust to apply the minimum sentence in a case in which the first of the three drug trafficking offences was from nearly eight years earlier and the third was committed when the offender was only 15 years old. Secondly because of the applicant’s poor health. He had been diagnosed with systemic lupus erythematosus in 2018 having become severely ill whilst in prison. He received extensive drug therapy for this illness. He now has secondary chronic kidney disease.

For his early guilty pleas, the court allowed the applicant 20 per cent credit, as much credit as was permitted by s.73(3)(a) of the Act but declined to find that it would be unjust to apply the three-strike minimum term.

The single judge referred the application for leave and the request for an extension of time to the full court on two linked grounds. Firstly, that it was unjust to impose the mandatory minimum sentence on the applicant whose illness will make serving a prison sentence unusually onerous compared to a healthier prisoner serving a similar sentence. Secondly, because the Recorder had commented that there were no authorities to the effect that the ill-health of an offender can be a reason to dis-apply the minimum sentence. The applicant relied on a line of authorities that state otherwise.

It was held that:

[20.] “It was wrong in principle for the Recorder to rule out the possibility of the reduction of the minimum term and we have considered the matter afresh. Having done so the applicant has not established that the imposition of the minimum term set by Parliament was unjust or the sentence manifestly excessive. As to the extension of time, the application for leave is substantially – over seven and a half months – out of time. There have been a catalogue of errors by the solicitors in progressing the application in a timely manner, one or two of which would be excusable, but the totality is not. However, if there had been merit in the appeal, the extension of time would have been granted as it would not be in the interests of justice for an applicant to be disadvantaged by the shortcomings of his legal team. However, since the grounds are not reasonably arguable, the application for an extension of time is refused, leave is refused and the application is dismissed.”

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