In this issue
URGENT NOTICE re: Issue 30 of our Criminal Appeals Bulletin
Financial Crime Appeals
Hong Kong Case Summaries
Appeals Against Sentence; England and Wales
Appeals Against Conviction; England and Wales
Appeals Against Sentence; England and Wales

By Farrhat Arshad

 

 

Hospital Order pursuant to section 37 of the MHA 1983 /IPP; Fresh evidence re mental disorder; Application of Vowles and Edwards;

 

R v Rendell

 

In 2012 R was sentenced to an IPP for one offence of wounding with intent.  He had stabbed a man unknown to him in the neck with a broken bottle. Whilst a PSR and a psychological report had been available at sentence, it was not suggested at the time that R had a mental illness within s. 37 MHA 1983. However, in 2015 he was transferred to Hospital.  His responsible clinician, a consultant psychiatrist, was of the opinion that the appellant suffered from an emotionally unstable personality disorder and had done so throughout his adult life; his mental disorder made it appropriate for him to be detained in hospital for medical treatment; and medical treatment was available for him. A second consultant psychiatrist agreed with these opinions. 

 

CACD considered the reports and the oral evidence of the responsible clinician. The statutory criteria in  de bene esse and having done so were satisfied that the statutory criteria for the admission of the evidence set out in section 23(2) Criminal Appeal Act 1968 were met and it was in the interests of justice to receive the fresh evidence. The Court then applied the steps set out in Vowles, considered the regime post release and was satisfied that the appropriate sentence was a Hospital order under s. 37 and a restriction order under s. 41 of the Mental Health Act 1983.

 

 

 

Robbery with axe; whether 3 years after plea “unduly lenient”;

 

Attorney-general’s Reference (R v Wilkinson)

 

[2019] EWCA Crim 723

 

W had been sentenced to three years’ imprisonment following a guilty plea to robbery.  He had been in possession of an axe when he, together with another, had entered a women’s changing room at a sports club, where the takings of a fireworks’ display were being counted..  W had 72 previous offences, 13 of which were for violence and 23 for dishonesty.   CACD: Whilst all parties were agreed that the correct category in the guidelines was category 2A, giving a range of four to eight years and a starting-point of five years, the judge had been wrong to reduce the starting-point to four years before applying the 25% reduction for the guilty plea. Rather, the starting-point should have been increased to six years to reflect the aggravating features of the offender’s poor record of previous offences, the targeting of large sums of cash whilst they were being counted, that the offending occurred in a female changing room, that it was a group offence and the robbers made efforts to conceal their identities and the offence was committed on licence.  As such the correct sentence was 4 ½ years’ imprisonment and the 3 year sentence was unduly lenient.

 

 

3 counts of wounding with intent to cause grievous bodily harm; street stabbing; 18 years’ imprisonment upheld on offenders for joint enterprise offences

 

R v Mampuya and Gomes

 

[2019] EWCA Crim 619

 

The CACD was “doubtful” that attacks in two of the three offences were sustained even where the victims were stabbed repeatedly (three and five times) and therefore the offence was not one of greater harm (considering also the injury).  Nevertheless, the total sentence of 18 years’ imprisonment for three offences of wounding with intent could not be described as manifestly excessive. 

 

cf Khalid and Bowen below re what constitutes a “sustained attack”.

 

 

Mitigation in murder offences – statutory mitigation and mitigation personal to the offender

 

R v Khalid and Bowen

 

[2019] EWCA Crim 701

 

CACD considered whether the sentencing judge had given sufficient regard to the mitigation afforded by the lack of an intention to kill and the lack of premeditation.

 

The Court was of the view that those factors are likely to be of less significance where someone sets out to use violence, although not intending to kill and a death occurs, than where someone uses violence without setting out to do so and a death occurs.

 

 

ss 225/226 Criminal Justice Act 2003 (as originally enacted); whether age of offender when offence committed or when convicted determinative of whether s. 225 or 226 applied;

 

R v Bennett [2019] EWCA Crim 629

 

B had been sentenced in 2007 to Detention for Public Protection pursuant to Chapter 5 Criminal Justice Act (“CJA”) 2003, as it was originally enacted. The index offence of arson was committed when he was aged 17 but he was sentenced when aged 18.  The main ground of appeal concerned the proper interpretation of ss. 225 and 226 of the CJA 2003 and whether it was the person’s age at the date of the commission of an offence, or the person’s age at the date of their conviction for the offence, which was determinative of whether they were to be dealt with under s. 225 or 226.  B also relied on Article 7 of the ECHR, the principle against retrospectivity, to argue that he should have been sentenced under s. 226.  Had the appellant fallen to be sentenced pursuant to s. 226, it was necessary for the judge to consider whether an extended sentence would have adequately protected the public.  The Prosecution argued that the appellant had to be sentenced under s. 225 as the sections contained express wording that it was the age at the date of conviction that was determinative of which section applied.

 

CACD held that the express wording of ss. 225 and 226 was clear: it was the date of the conviction and not the date of the commission of the offences that was determinative.  Whilst there could be no doubt that the approach to sentencing those who cross a relevant threshold between the date of the commission of an offence and the date of conviction (to limit the extent of any period of custody to that which could have been imposed at the date when the offender committed the offence) represented a well-established sentencing principle, as explained in Ghafoor, which has been consistently applied over the ensuing years, it had also been made clear with equal consistency in those cases that this did not affect the type of sentencing regime which was to be applied to the offender, which was to be determined by the age of the offender at the date of conviction.  As such the judge had no choice but to sentence the appellant under section 225 which required a mandatory DPP once a finding of dangerousness had been made.

 

 

If you would like to speak to Farrhat Arshad about this case, please email here.