No: 201704713/A1
 NEUTRAL CITATION NUMBER: [2017] EWCA Crim 2324
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 14 December 2017 
 
B e f o r e:

LORD JUSTICE TREACY 

MR JUSTICE STUART‑SMITH 

HIS HONOUR JUDGE MAYO QC
(Sitting as a Judge of the CACD) 
REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

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R E G I N A 
v 
SAMUEL CLIVE MARTIN POWELL 

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Mr P Jarvis appeared on behalf of the Attorney General

Mr I Worsley appeared on behalf of the Offender

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 LORD JUSTICE TREACY:  
1.	This is an Attorney‑General's Reference of a sentence he considers unduly lenient.  
2.	The offender pleaded guilty on the day fixed for trial at Bristol Crown Court and admitted one offence of aggravated burglary and one of common assault.  For the first offence he was sentenced to 3 years 9 months' imprisonment, for the second sentence he was sentenced to 4 months' imprisonment consecutive, making a total sentence of 4 years and 1 month.  The Reference is brought solely in relation to the first offence, the aggravated burglary.  
3.	It is of relevance to record that the guilty plea to that offence was tendered after a Goodyear indication had been sought and a written basis of plea agreed between prosecution and defence.  That written basis only differed from the prosecution case in that offender disputed punching and kicking the victim of the aggravated burglary as many as two dozen times as the victim had maintained.  The indication given was that with credit of about 10% for a late plea the maximum sentence to be imposed on this count would be 3 years and 9 months' imprisonment.  Therefore, without such credit the judge must have had in mind a term of around 4 years.  
4.	The facts show that on 28th May 2017 the offender was at block of flats where the victims, Simon and Jason Tompkinson, lived.  The offender's girlfriend, who had once been the partner of another son in the Tompkinson family, lived in the same block with this offender.  There was a history of ill‑feeling between this offender and that other son.

5.	On 28th May the offender was looking for that son but instead at about 10.00 pm saw Jason Tompkinson, his brother, go to his car outside the flats.  The offender approached him and asked where his brother was.  When Jason said that he did not know the offender punched him in the face causing a graze and some reddening.  This was the offence of common assault.  
6.	The offender then made his way to Simon Tompkinson's flat.  He knocked on the door and Mr Tompkinson opened it to see the offender there with a knife in his hand.  He tried to shut the door but the offender forced his way in.  Mr Tompkinson retreated, terrified, but was followed by the offender who then held the knife to Mr Tompkinson's throat and threatened to cut his head off.  There was then a sustained assault in which the victim was kicked and punched.  He was also hit in the face with the handle of the knife, causing a cut. The offender also threw items around in the flat and dropped Mr Tompkinson's television to the floor.  He threatened to return later unless he was given £600.  He then left.
7.	In the meantime, Jason had gone to his mother's home address nearby.  He told his mother and sister what had happened to him and they then learned of an attack upon Mr Tompkinson Senior.  When the family reached his flat they found him slumped on the sofa in the living room, the front door was damaged and there was blood around the flat.  Mrs Tompkinson called the police and while waiting saw the offender, who still had a knife handle protruding from the waistband of his trousers.  He said he had done what he had done because he was owed money by the other son. 
8.	Mr Tompkinson Senior was found to have a fracture of his left wrist and cuts and bruises to his face.  In addition he has suffered other consequences.  He found it very difficult to return to his flat and needed someone to stay with him for his own peace of mind.  He now felt he had to leave the flat he had lived in happily for 7 years or so.  He has difficulty sleeping, feels pain in his arm and feels his life has been completely changed.  Prosecuting counsel wrongly informed the Recorder that there was no victim personal statement so that the Recorder did not have Mr Tompkinson's account of the consequences for him at the time of passing sentence.  
9.	On behalf of the Attorney General it is submitted that the sentence was unduly lenient because there has been a misapplication of the Sentencing Council's aggravated burglary guideline.  Correct analysis of that guideline it was submitted showed this was a category 1 rather than a category 2 case.
10.	In this context it is necessary to spell out the particulars of the aggravated burglary count.  They allege that the offender entered the flat as a trespasser, inflicted grievous bodily harm on Simon Tompkinson and at the time of committing that offence of burglary had with him a weapon of offence namely a knife.  In considering the guideline defence counsel conceded there were factors indicating greater harm but submitted that the only potential higher culpability factor present, namely weapon present on entry, should be disregarded as a form of double counting, since it was inherent in the commission of the offence.  Accordingly he submitted that the case fell into category 2 rather than category 1.
11.	Prosecuting counsel agreed with that submission and the Recorder accepted it before giving a Goodyear indication.  A category 2 case has a starting point of 6 years, with a range from 4 to 9 years, whereas a category 1 case has a starting point 10 years with a range from 9 to 13 years.
12.	The Attorney General, correctly in our view, submits that everyone below was in error.  That analysis might apply to the form of aggravated burglary where a person enters a property as a trespasser intending inter alia to commit grievous bodily harm and had a weapon with him at the time of entry.  The form of offence alleged in this case is complete when grievous bodily harm is inflicted and all that the Crown has to prove is that the offender had the weapon with him at the time of infliction of the injuries.  Accordingly the presence of the knife at the time of entry was open for consideration as a higher culpability factor since its presence on entry is not inherent in the offence. 
13.	We have seen a transcript of the hearing below.  It is quite clear that prosecution counsel agreed with a category 2 analysis of the case.  As Goodyear clearly indicates at paragraph 70 [2006] 1 Cr App R(S) 6, prosecuting counsel should remind the judge that a Goodyear indication does not affect the Attorney General's right to refer a sentence to this court as unduly lenient.  He should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.  Prosecution counsel failed to reserve the Attorney General's position, and although he said nothing to indicate support or approval for any sentencing indication, he had helped to set the scene for the indication given, by his acceptance of the case as falling within category 2 of the guideline. 
14.	The process of indication was not happily conducted.  It took the form of an extended conversation between defence counsel and Recorder, at the end of which the Recorder gave an indication of a maximum sentence of 2 years' imprisonment.
15.	At that prosecuting counsel intervened and pointed out that the figures appropriate to a category 2 case are well above that figure and reminded the judge that there was only limited credit available by reason of a late guilty plea.  After that the judge gave a Goodyear indication of a term of 3 years and 9 months.  There then followed an adjournment after which the offender pleaded guilty and in due course he was sentenced to that term.
16.	In passing a sentence based on the very bottom of the category 2 range the Recorder referred to the offender having been out of trouble for about 6 years, his being a relatively young man, the fact that this was not a planned attack and the fact that this would be the offender's first custodial sentence. 
17.	This offender is now 24 years of age.  He was convicted in September 2011 for affray and possessing an offensive weapon.  He received a suspended sentence.  Prior to that, when he was a young teenager there were convictions for offences of violence.
18.	The attack upon Mr Tompkinson was described by the Recorder as a "very fierce" attack, and the combination of physical and psychological consequences have undoubtedly been very significant for a man in his mid‑fifties who was already in poor physical health.
19.	The Attorney General has sought to depart from the concession as to category made below, on the basis that this arose from a misunderstanding of the law rather than a failure to appreciate whether a particular feature of the case would have the effect of aggravating the seriousness of the offence.  It seems to us that the prosecutor's mistake can equally be characterised as falling into the latter category.
20.	Mr Jarvis also submitted that there was a public interest in ensuring that errors of this sort are not permitted to create unjust outcomes, lest public confidence in the integrity of the criminal justice system be adversely effected.  Moreover, he argued that where the facts are clear, and the offender can have no legitimate expectation that this court cannot be expected to consider the sentence passed on an Attorney‑General's Reference.
21.	It is right to say that the Recorder himself, having initially given an inappropriate indication of a 2 year term, referred to the possibility of an Attorney‑General's Reference.  Mr Worsley's written submissions fairly acknowledged that a properly advised defendant would be told that the Crown may seek to refer a case as unduly lenient even in the circumstances of a Goodyear indication.  He has frankly told us this morning that after the indication was given he, at that point, had in mind the possibility of an Attorney‑General's Reference following and for that reason, did not advance personal mitigation which he had otherwise intended to advance.  His concern was that by advancing such mitigation a still lower figure would eventuate and that that would trigger an Attorney‑General's Reference.
22.	Nonetheless Mr Worsley contends, with a degree of force, that defendants do rely on judicial indications when deciding whether or not to plead guilty and that they should be able to rely on them, particularly in circumstances where prosecuting counsel has agreed a relevant category prior to the Goodyear indication from the sentencing judge.  He argued that permitting departure from category on an Attorney‑General's Reference in those circumstances would create a real sense of unfairness, and it would have the effect also of undermining the Goodyear process.
23.	An erroneous categorisation made by prosecuting counsel after a trial, or where there has been a guilty plea without a Goodyear indication will not normally have the effect of fettering this court if, on analysis, a higher category is warranted by the facts of the case.  If an Attorney‑General's Reference is brought in such circumstances, the Attorney will need to explain to the court why counsel's concession below is proposed to be departed from ‑ see Attorney‑General's Reference (R v Stewart) [2017] 1 Cr App R(S) 48).  
24.	However, where a concession has been made in the context of a Goodyear hearing, closer consideration will be required.  In Goodyear at [71] this court said in the context of Attorney‑General's References: 

"As we have explained, we do not anticipate that counsel for the Crown will have said or done anything which may indicate or convey support for or approval of the sentence indication. If however he has done so, the question whether the sentence should nevertheless be referred to this Court as unduly lenient, and the decision of the Court whether to interfere with and increase it, will be examined on a case by case basis, in the light of everything said and done by counsel for the Crown."

25.	In R v Newman [2011] 1 Cr App R(S) 68, a case where a judge departed from an initial indication, but before doing so gave the defendant an opportunity to vacate his plea, this court, in dismissing the appeal, observed that in circumstances where a judge proposes to depart from a Goodyear indication, this must only be done in a way that does not give rise to unfairness.
26.	We recognise that the situation in that case was not identical to the present one, but we consider that it is sufficiently analogous for us to pay regard to it.  In R v Susorovs [2016] EWCA Crim 1856, this court considered fairness in the context of an Attorney‑General's Reference after prosecuting counsel below had made submissions which were adopted by the court below but not accepted by the Attorney on the Reference.  We have had regard to that decision.
27.	It is important in the present case to recognise that:
 	(i) There was mention of an Attorney‑General's Reference during the hearing albeit not by 	   prosecuting counsel; 
	(ii)  It is not suggested that the offender was unaware of the possibility of an 	         	   Attorney‑General's Reference prior to pleading guilty; 
	(iii) Prosecuting counsel's miscategorisation influenced the judge's decision; 
	(iv) Prosecuting counsel said nothing to convey acceptance or approval of the figure 	   eventually reached by the Recorder; 
	(v) Prosecuting counsel had intervened when the judge made the wholly inappropriate 	   indication of a 2 year term and had drawn category 2 to the judge's attention, citing 	   both the starting point and the available range, thereby confirming his earlier agreement 	   that this was a category 2 case. 
	(vi) Importantly, however, prosecuting counsel was not agreeing to any particular figure 	   within the range of 4  ‑  9 years for category 2 prior to the indication being given;  
	(vii) The overall interests of justice not only involve a consideration of this offender's 	   position but also that of the victim and the wider public interest in just and 	   	   proportionate sentences being imposed for serious crime.
28.	Having weighed the relevant factors of the case itself, we conclude that this case may well have fallen within category 1.  It seems to us in any event that the sentence passed was unduly lenient.  It also seems to us that it would not be just to permit the Attorney General to go so far behind what was said below as to raise this case into that category.
29.	However, to treat this case as falling within the whole range of category 2 would do no violence to what was advanced by prosecuting counsel and no injustice to this offender.  Taking the facts as they were, but operating within the confines of category 2 would elevate this case to the top of the category range before making allowance for personal mitigation.  We have to say that in our view the Recorder attached rather too much weight to the factors he identified but there remains some personal mitigation available.
30.	Moreover, Mr Worsley has told us today that in the light of his concerns about the indication which had been given by the judge he had not advanced other mitigation which might well have benefited this offender.  We understand his reasons for not doing so.  We commend the frankness which he has shown to us earlier and have no difficulty in accepting his word that there was other mitigation which he could have advanced but did not do so for the reasons already explained.
31.	We therefore invited Mr Worsley to place before us the mitigation which he would otherwise have put before the Recorder.  Without going into the detail it is clear that this offender had a very difficult and troubled childhood and upbringing and that in his adult life there have been difficulties from which he has suffered.  We are satisfied that the picture presented by that mitigation operates as further mitigation which it is appropriate for the court to take into account today.  That has a result, in our judgment, of bringing the sentence down from one at or near the top of the category range to something rather below that.
32.	In addition, there is credit to be given for the guilty plea, albeit limited by the fact that the plea was belated.  We give leave to the Attorney General, and in the light of our finding of undue leniency, consider it appropriate to increase the sentence passed on count 1 but moderating the increase in the way already described in order to achieve fairness in the circumstances of this case.
33.	The overall result is that we consider that a just and proportionate term for count 1 is a period of 6 years and we impose that term in place of the term imposed below.  The sentence imposed in relation to count 2 remains unaffected as a consecutive term of 4 months.  Therefore the overall sentence on this offender is now one of 6 years and 4 months. 
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