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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 >> Kulah, R. v [2007] EWCA Crim 1701 (13 July 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1701.html Cite as: [2008] 1 WLR 2517, [2008] 1 All ER 16, [2007] EWCA Crim 1701

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT IN CARDIFF
HIS HONOUR JUDGE DENYER QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 July 2007

MR. JUSTICE LLOYD JONES:

1. On 16 December 2005 at the Crown Court at Cardiff the applicant pleaded guilty on re-arraignment to attempted robbery. On 23 December 2005 he was sentenced by H.H. Judge Denyer QC to a term of imprisonment for public protection. A minimum term of 18 months less the 122 days spent on remand was specified under section 82A Powers of Criminal Courts (Sentencing) Act 2000. The Applicant also admitted being in breach of a Community Punishment Order previously imposed by Judge Denyer. That order was revoked and he was sentenced to a term of 12 months imprisonment for an offence of affray and a term of 3 months imprisonment for an offence of criminal damage, those terms to be concurrent with each other and with the term of imprisonment for public protection.
2. The Registrar of Criminal Appeals has referred to the Full Court his application for an extension of time (14 months and 2 weeks) and for leave to appeal against sentence.
3. This application first came before us on 9 May 2007. On that occasion we adjourned the application to enable the Crown to be represented and to permit further enquiries to be made as to precisely what occurred in the course of the proceedings in the Crown Court. The matter came before us once again on 11 May when the Crown was represented by Mr. Michael Jones. We are grateful to him and to Mr. Fitzgibbon who appears on behalf of the applicant, but who did not appear below, for the assistance they have provided to the court. At the conclusion of the hearing on 11 May we announced our decision. This judgment sets out our reasons.
4. At about 11.30 a.m. on 21 August 2005 the complainant, who was aged 17, was walking home after playing football when he came across the Applicant, whom he did not know. The applicant called out to him but even though the complainant ignored him the applicant continued to call out aggressively. He then went up to the complainant and asked to use his mobile phone. The complainant refused and walked away. The applicant followed him, continued to threaten him, stopped in front of him, grabbed hold of his shirt and punched him in the face. He made it clear that he wanted the complainant's phone. The complainant, fearing for his safety, punched the applicant who fell over. The group the applicant had been with then confronted the complainant who ran as fast as he could to the nearest police station to report the offence. He then toured the area with officers and was able to identify the applicant. The applicant was arrested but when interviewed said that the complainant had attacked him.
5. The applicant was born on 5 May 1980. He has a total of 13 convictions for 20 offences. These include a conviction for assault occasioning actual bodily harm in 1999 for which he was sentenced to 6 months detention in a Young Offenders Institution, an offence of assault on the police in 2002 for which he was sentenced to 5 months imprisonment and an offence of common assault in 2003 for which he was sentenced to a Community Rehabilitation Order for 12 months. I have already referred to the further offences of affray and criminal damage dealt with by Judge Denyer on 16 December 2005.
6. The offence of attempted robbery is a specified serious offence within Schedule 15, Criminal Justice Act, 2003.
7. On 9 November 2005 a Plea and Case Management Hearing took place before the Recorder of Cardiff, H.H. Judge Griffith Williams QC, as he then was. The Applicant was represented by Mr. Karl Williams. Mr. Williams sought an indication of sentence in accordance with the procedure established by this court in Goodyear [2005] EWCA Crim 88; [2005] 1 WLR 2532. The Recorder declined to give an indication. He stated that the Applicant was charged with a specified offence within Schedule 15, Criminal Justice Act 2003. There was no pre-sentence report before the court and accordingly he considered that he was not in a position to give the indication sought. After a brief adjournment the applicant was arraigned and pleaded not guilty.
8. On 12 December 2005 the matter came before H.H. Judge Wynn Morgan. It was listed for a "violence mention", a pre-trial hearing held in Cardiff in cases involving violence. The Applicant was again represented by Mr. Karl Williams who asked the judge to give a Goodyear indication. It appears that the Judge Wynn Morgan was not told that such an application had previously been made to the Recorder of Cardiff. Judge Wynn Morgan indicated that he would give a Goodyear indication on 16 December 2005. Judge Wynn Morgan also vacated the trial date, fixed to start the following week, owing to revised time estimates.
9. On 16 December 2005 the matter came back before Judge Wynn Morgan. There was no pre-sentence report available at that hearing. The judge, having confirmed the accuracy of his understanding as to the Applicant's previous convictions and having referred to the decisions of this court in Attorney General's References Nos. 4 and 7 of 2002 (Lobban) [2002] EWCA Crim 127; [2002] 2 Cr. App. R. (S.) 77 and Greenland [2002] EWCA Crim 1748, [2003] 1 Cr. App. R. (S.) 74, gave an indication of sentence. He is reported in the transcript as having stated:

"This defendant is 25. He has previous convictions but none approaching this quality. This is, of course, a specified serious offence, by virtue of it being an attempt it is a specified serious offence. It is not a case in which the court is of the opinion that there is significant risk to members of the public of serious harm, even by the commission by the defendant of further specified offences. The court does not consider that the case is such as to justify the imposition of a sentence of imprisonment for life. This means, by virtue of section 225(3), that the court will have to impose a sentence of imprisonment for public protection, an indeterminate sentence, the custodial portion of which has to be fixed and which, in my judgement, would, on a plea of guilty to the full facts of this case, be one of 3 years.

So, Mr. Karl Williams, you can do the maths. It would be a case of dividing that by two and subtracting any time spent in custody. It seems to me, on a first offence for an offence of this nature, on a guilty plea, in the absence of a weapon, bearing all that in mind, 3 years is the appropriate term."

Mr. Karl Williams then stated:

"So that would be 18 months and I think he has served 3 months and 3 weeks. Thank you very much."

For reasons that we set out at paragraph 34, we consider that the observations of the judge should be read without the word "not" in the fourth line.

10. Later that day, on re-arraignment, the Applicant pleaded guilty to the offence of attempted robbery. There was no basis of plea.
11. Mr. Michael Jones appeared on behalf of the prosecution at the hearing on 16 December. He had not appeared before the Recorder of Cardiff on 9 November 2005. Mr. Jones has told us that following the hearing on 16 December 2005 he endorsed on his brief that the indication of sentence given by Judge Wynn Morgan was one of imprisonment for public protection with a notional determinate sentence of 3 years imprisonment.
12. Mr. Fitzgibbon has shown us a copy of a letter dated 16 December 2005 from Gooden &Co., the solicitors then acting for the Applicant, to the Applicant purportedly confirming that Judge Wynn Morgan had indicated that if the Applicant entered a guilty plea to attempted robbery based on the prosecution facts the judge would impose a custodial sentence of 18 months imprisonment from which would be deducted the time served upon remand.
13. At our request Mr. Karl Williams prepared a note of his recollection of the proceedings below. He states with regard to the hearing on 16 December 2005:

"Looking back it was my understanding that a determinate sentence of 3 years imprisonment less time spent on remand was the term indicated."

14. Judge Wynn Morgan did not proceed to sentence the applicant on 16 December because HHJ Denyer QC had reserved to himself any breaches of the Community Punishment Order which he had imposed in respect of the offences of affray and criminal damage.
15. Accordingly, on 23 December 2005 the case came before Judge Denyer for sentence. On this occasion Mr. H. Hughes appeared for the prosecution and Mr. Karl Williams for the Defendant. In opening the facts Mr. Hughes stated that the Applicant had pleaded guilty on 16 December before Judge Wynn Morgan following a Goodyear indication as to sentence.
16. The transcript records Judge Denyer's sentencing remarks as follows:

"You fall to be sentenced today for the offence of attempted robbery and for breach of the Community Punishment Order that I imposed in February of this year for affray and criminal damage.

You appeared in front of HHJ Wynn Morgan a couple of weeks ago, in fact about a week ago, and he gave an indication (a) that clearly this was not a case for life imprisonment – I agree – but (b) because this was a serious specified offence and you have a previous conviction for a specified offence it was a case for imprisonment for public protection. He further indicated that the appropriate sentence was three years, of which you would serve half, less time spent. It seems to me that that is binding on me and that it would be quite wrong of me to upset that suggestion.

Accordingly, for the offence of attempted robbery I do impose a sentence of imprisonment for public protection. The appropriate determinate period is three years' imprisonment, of which you will serve half, which is 18 months, less 122 days that you have spent in custody. I revoke the Community Punishment Order and for the affray on 17 October last year, twelve months' imprisonment concurrent with the attempted robbery sentence, and three months' imprisonment for the damage, likewise concurrent with the attempted robbery.

So that is the sentence, all right. I have done that which Judge Wynn Morgan said he would do. Thank you."

17. It is the recollection of Mr. Karl Williams in the note he prepared for this court that there was no pre-sentence report at the hearing on 23 December 2005. However he added that he could not discount the possibility that there may have been a "breach" report relating to the Community Punishment Order, although he thought that unlikely. The Probation Service has since confirmed that no pre-sentence report on the Applicant was prepared for the purposes of sentencing for the offence of attempted robbery. There was in existence a breach report dated 8 August 2005 which merely recounted the applicant's failure to attend appointments with the probation service and asked that the Community Punishment Order be revoked and that the applicant be re-sentenced. It contained no risk assessment or recommendation.
18. On 4 January 2006 Gooden & Co. wrote a letter to the applicant informing him that at Cardiff Crown Court on 23 December 2005 he had been sentenced to a period of custody of three years for the offence of attempted robbery and that the period of 122 days spent on remand was to be deducted from that sentence.
19. On 7 March 2006, the National Offender Manager Service wrote to the Applicant to inform him that the Parole Board would meet to consider whether he could be released at the end of the minimum period of imprisonment he was required to serve, i.e. thirteen months and 29 days, which was due to expire on 21 February 2007. Mr. Fitzgibbon tells us that it was not until this time that the applicant or Gooden & Co. began to think that the sentence he was serving might be a sentence of imprisonment for public protection and not a determinate sentence of three years. In July 2006 Gooden & Co. sent the Applicant a copy of the sentencing remarks. The Applicant contacted different solicitors in about November 2006 to ask for assistance. Mr. Fitzgibbon was instructed on 12 March 2007 to advise on whether there should be an appeal against sentence.
20. We have set out the history of these proceedings in some detail because it has a direct bearing on the issues we have to decide.
21. The Applicant seeks an extension of time of 14 months and 2 weeks within which to apply to this court. The ground of this application is that the Applicant was under a misapprehension as to the nature of the sentence imposed upon him. We are sceptical as to whether the Applicant did, in fact, fail to understand the nature of the sentence imposed by Judge Denyer. The judge explained in very clear terms that the sentence was one of imprisonment for public protection. Furthermore, we note that there has been a considerable delay in making any application to this court after the date at which the true nature of the sentence imposed was drawn to the applicant's attention. However, we also bear in mind that the applicant was seriously misinformed by Gooden & Co., the solicitors then acting for him, as to both the nature of the indication given by Judge Wynn Morgan and the sentence imposed by Judge Denyer. Moreover, given the troubling course of events which I have related, we consider that it is appropriate to grant the extension of time sought. We turn therefore to the substance of the application.
22. We understand that difficulties are encountered in dealing with Goodyear indications in cases where the defendant is charged with one or more offences which are specified offences within Schedule 15 to the Criminal Justice Act 2003 and we hope it may be helpful if we were to offer some observations.
23. We consider that it is not necessarily inappropriate to seek or to give a Goodyear indication merely because a defendant is charged with a specified offence. However, there may be dangers in undertaking this course and it is necessary to warn of them. If an indication is improperly given, a sentencing judge may find himself bound by the "dangerous offender" provisions to impose a sentence which is qualitatively different from the indication he has given. In the alternative, he may consider himself bound by his prior indication to impose a sentence which does not accord with mandatory statutory provisions.
24. The so-called "dangerous offender" provisions in Part 12, Chapter 5, Criminal Justice Act, 2003 are mandatory. (Reynolds and others [2007] EWCA Crim 538 at paragraph 5). Thus, if an adult defendant falls to be sentenced for a specified offence committed on or after 4th April, 2005, and he is assessed as presenting a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the sentencing judge's discretion is circumscribed. If the offence is "serious" (i.e. carries a maximum penalty of 10 years' imprisonment or more) an indeterminate sentence must be imposed. If it is not "serious" an extended sentence must be imposed.
25. Goodyear was argued before the "dangerous offender" provisions came into effect, although judgment was handed down shortly after they came into effect. The impact of these provisions was not before the Court for consideration. Nevertheless, the guidance set out in Goodyear holds good. Of particular significance in this regard is paragraph 65(d) of the judgment:

"[A]ny indication which may be given relates only to the matters about which an indication is sought. Thus, certain steps, like confiscation proceedings, follow automatically, and the judge cannot dispense with them, nor, by giving an indication of sentence, create an expectation that they will be dispensed with."

26. It is axiomatic that a Goodyear indication will be sought before plea. At that time, it will often be the case that the sentencing judge will not be in possession of the information necessary to enable him or her to make the assessment of risk required by each of subsections 225(1)(b), 226(1)(b), 227(1)(b) and 228(1)(b). In this regard we understand that it is now the usual practice of the Probation Service not to produce a pre-sentence report until after the defendant has pleaded guilty or has been convicted.
27. There will, of course, be very clear cases where the assessment that the offender is dangerous is manifest even at that stage, perhaps based only on the antecedent history and the nature of the offending before the court. It may not be difficult, for example, to categorise as "dangerous" a professional armed robber who has a lifetime of convictions for that offence and who habitually carries loaded firearms in the course of his criminal occupation or a serial rapist with a long history of deviant and dangerous criminal sexual behaviour.
28. However, the great majority of cases will not be clear-cut. Pre-sentence and other appropriate reports will not be available. In such cases, it remains a matter for the judge to decide whether it is appropriate to give an indication. Such a situation was foreseen in Goodyear itself (at paragraph 58).

"There will be occasions when experience will remind him that in some cases the psychiatric or other reports may provide valuable insight into the level of risk posed by the defendant, and if so, he may justifiably feel disinclined to give an indication at the stage when it is sought."

As Goodyear (paragraphs 56-59) makes clear, the judge is under no obligation to give an indication and he has an unfettered discretion in this regard.

29. There are particular difficulties in giving an indication in respect of a young offender (under 18 at the date of his plea of guilty or his conviction) because there is the additional option, which is not available when dealing with an adult, of imposing an extended sentence in respect of a serious specified offence.
30. If the Judge decides to give an indication where an assessment of future risk remains to be made he should make the following matters clear.

(a) The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act, 2003, bringing into operation the "dangerous offender" provisions contained in Part 12, Chapter 5 of that Act.

(b) The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that that assessment remains to be conducted.

(c) If the defendant is later assessed as "dangerous", the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.

(d) If the defendant is not later assessed as "dangerous", the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.

(e) If the offender is later assessed as "dangerous", the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release). It must be remembered that where an extended sentence is imposed on any offender, the appropriate custodial term cannot be less that 12 months (subsections 227(3)(b); 228(3)(b)).

(f) If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.

Nevertheless, it seems to us that judges may, understandably, feel a reluctance to give a Goodyear indication in circumstances where they do not yet know how dangerous the defendant really is.

31. Finally in this regard, we would point out that Goodyear (paragraph 70) already imposes an obligation on the prosecution to draw the attention of the judge to any minimum or mandatory sentencing requirements. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by each of the relevant subsections.
32. Returning to the facts of the present case, we consider that the Recorder of Cardiff was justified in declining to give a Goodyear indication at the Plea and Case Management Hearing on 9 November 2005. As this court made clear in Goodyear (at paragraph 57) judges retain an unfettered discretion to refuse to give any indication of sentence. The Recorder clearly considered that he was not in a position to make an assessment of dangerousness on the information then before him. In particular, he did not have the benefit of a pre-sentence report. While it would have been open to the Recorder to give an indication subject to the qualifications we have referred to above and to defer the assessment of dangerousness, the course he followed was entirely appropriate.
33. It is a matter of great concern to this court that, the Recorder having refused to give a Goodyear indication, an application for such an indication was then made to Judge Wynn Morgan on 12 December 2005 without Judge Wynn Morgan being told then or on 16 December of the earlier application, its outcome or the reasons for the Recorder's refusal to give an indication of sentence. If it is the case that a practice of forum shopping is developing, it is to be deprecated.
34. Mr. Fitzgibbon submits that the indication of sentence given by Judge Wynn Morgan, as recorded in the transcript set out above, does not make sense because it is internally contradictory. We agree. If, as the transcript states, it was the opinion of the judge that this was not a case in which there was a significant risk to members of the public of serious harm occasioned by the commission by the applicant of further specified offences, a pre-condition for the imposition of a sentence of life imprisonment or a sentence of imprisonment for public protection would not be satisfied. We have caused the transcript to be checked and are satisfied that it is accurate. However, we are entirely satisfied that the word "not" in the fourth sentence of the extract quoted above was a mere slip on the part of the judge. If that word is deleted, the passage makes complete sense. On consideration of the entire passage his intended meaning is clear.
35. Furthermore, it is clear from the transcript that the sentence which the judge indicated was a sentence of imprisonment for public protection with a minimum term of 18 months, less the time spent in custody on remand. Moreover, the judge stated in terms that this was an indeterminate sentence. Further confirmation is provided by the endorsement made by Mr. Michael Jones on his brief. We are at a loss to understand how the solicitor representing the Applicant on that occasion could have made such a fundamental mistake as to the nature of the indication. (However, we also note that Mr. Angelo Gooden, a partner in the firm, made an equally fundamental mistake as to the nature of the sentence imposed by Judge Denyer on 23 December 2005.) The recollection of Mr. Karl Williams as to the indication given by Judge Wynn Morgan is made after a long period of time and without the opportunity to consult the full file. We are satisfied that he is mistaken in his recollection. Had Judge Wynn Morgan given an indication of a determinate sentence it is inconceivable that Mr. Williams would not have raised the matter before Judge Denyer and protested that he was proceeding on a false basis. (We note that a different solicitor from Gooden & Co., Mr. Angelo Gooden, was present at the sentencing hearing on 23 December. However, having seen the file note prepared by the solicitor present on 16 December, we are unable to understand why Mr. Gooden failed to indicate that Judge Denyer was departing from what the file note recorded as Judge Wynn Morgan's indication.)
36. In the particular circumstances of this case, we doubt that it was open to Judge Wynn Morgan to make an assessment of the dangerousness of the defendant on the basis of the material then before him. In particular, he had not been provided with a pre-sentence report. We do not consider that this case falls into the category of very clear cases, identified above, where the conclusion that the offender is dangerous is inevitable from the outset, for example because of the defendant's antecedent history or the nature of the offence before the court. We consider that where, as here, the judge thinks it desirable to give an indication of sentence, the more appropriate course would be to give that indication subject to the important qualifications we have set out in paragraph 30 above, and to defer the assessment of dangerousness until the court is in possession of the material it needs to enable it to make that decision.
37. That assessment of dangerousness should normally be made by the judge who gave the indication as to sentence, when he comes to sentence. In the present case, when the matter came before Judge Denyer he clearly felt uncomfortable in sentencing the applicant in circumstances where a Goodyear indication had been given by another judge.  There were in this case good reasons why sentence for any breach of the community orders had been reserved to Judge Denyer and one can see, therefore, why it was thought appropriate that Judge Denyer should deal with the sentence.  We accept that it will not always be possible for a judge who has given a Goodyear indication to impose the sentence.  However, we suggest that it would be desirable that whenever possible the judge who has given a Goodyear indication should himself sentence the defendant.  If it is unavoidable that a different judge has to pass sentence, we consider that the sentencing judge should be provided with a transcript of the Goodyear indication.  There is scope for misunderstanding if a Goodyear indication is merely related to the sentencing judge by counsel.  The sentencing judge should have the benefit of a transcript setting out the precise terms of the indication given. 
38. Mr. Fitzgibbon makes two criticisms of the approach followed by Judge Denyer in the present case.  First, he submits that the judge failed to appreciate that the Goodyear indication is an indication of the maximum sentence which may be imposed.  He says that the sentencing judge should have formed his own view as to the appropriate sentence.  Secondly, he submits that the Applicant was sentenced to a term of imprisonment for public protection without any of the judges who heard his case having made a proper assessment of his dangerousness.  We consider that there is force in these submissions. 
39. This court in Goodyear (at paragraph 57) made clear that any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought.  In the present case the indication given by Judge Wynn Morgan was an indication of maximum sentence and did not relieve Judge Denyer of the duty to form his own view as to the appropriate sentence.  It may be that Judge Denyer in the exercise of his independent judgement would have come to the same conclusion.  However, the terms of his sentencing remarks indicate that he considered he was bound to impose the sentence previously indicated.  The true position is that a judge is bound not to impose a more onerous sentence than the maximum sentence previously indicated in accordance with the Goodyear procedure.
40. Furthermore, it is for the sentencing judge to form his own view of whether the requirements of section 225(1) (b) Criminal Justice Act 2003 are satisfied.  In the present case, Judge Denyer should not have adopted the conclusion of Judge Wynn Morgan.  It is an unfortunate feature of this case that at no stage was a proper assessment of the dangerousness of the Applicant carried out. 
41. In these circumstances, it falls to us to make a fresh assessment of the dangerousness of the Applicant.  We are very conscious of the fact that we do not have the benefit of a pre-sentence report.  However, we consider that in the light of the history of this case which we have set out and at this late stage, some 17 months after sentence and 21 months after the commission of the offence, this would be impracticable.  The Applicant is now 27 years of age.  He has 12 previous convictions for 19 offences.  Only one of these is relevant for the purposes of section 229(3), namely his conviction for assault occasioning actual bodily harm on 28 May 1999 when he was sentenced to 6 months detention in a Young Offender Institution.  Having regard to the age of that conviction, the nature of his other convictions and the other matters to which we are required to have regard under section 229(3) we have come to the conclusion that it would be unreasonable now to conclude that there is a significant risk to members of the public of serious harm occasioned by the commission of him of further specified offences.  We consider, in particular when taking into account the history of the events surrounding the sentencing of the applicant, that the appropriate sentence in this case is a determinate sentence of three years imprisonment less the 122 days spent in custody on remand.  The concurrent sentences of imprisonment will not be disturbed.
42. Accordingly we grant an extension of time within which to apply to this court, we grant leave to appeal against sentence and we allow that appeal to the extent indicated.