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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 >> Piruz, R. v [2017] EWCA Crim 1292 (17 August 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/1292.html Cite as: [2017] EWCA Crim 1292

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17 August 2017

1. MR JUSTICE HOLROYDE: On 28th November 2016, in the Crown Court at Lewes, this appellant pleaded guilty to four offences, all of which he had committed on 7th January 2016. The offences were count 1, burglary of a domestic garage and theft of tools; count 5, attempting to cause grievous bodily harm with intent; count 6, attempting to cause grievous bodily harm with intent; and count 7, affray.
2. On 13th January 2017 he was sentenced to life imprisonment on the two most serious offences (counts 5 and 6). The learned judge specified the minimum term before the appellant could be considered for release on licence as 5 years. For the other two offences, concurrent sentences of 6 months on count 1 and 9 months on count 7 were imposed.
3. The appellant applied for leave to appeal against sentence on two grounds. First, he contended that the life sentence was disproportionate and wrong. Secondly, he contended that the minimum term was too long, in particular because the learned judge had incorrectly applied the relevant Sentencing Guideline.
4. When considering the matter on the papers the single judge refused leave on the first of those grounds but granted leave on the second. The initial challenge to the correctness of the life sentence is no longer pursued. The court is therefore concerned today with the appeal against the length of the minimum term. We are grateful to Mr Blackford for his written and oral submissions on that point.
5. The appellant is now 34 years old. He was born in Afghanistan. As a child living there he had the awful experience of witnessing the murder of his parents. Subsequently he was granted asylum in Holland. He lived there for many years and acquired Dutch citizenship.
6. In 2007, aged 24, he was convicted in Holland of the murder of a young woman who was a tenant in his property. He was released from the sentence imposed by the Dutch court for that offence after some 6 years.
7. In December 2015 the appellant came to the United Kingdom in order to spend the Christmas and New Year period with family who lived in this country. Events from that point onwards, and the circumstances of the offences to which we have referred, were well summarised in the following terms by the learned judge at page 2 of the transcript:

"You had been visiting your family in the United Kingdom over the Christmas and New Year period and you became stressed and your behaviour began to be unpredictable. You were due to fly back to your home in Holland from London Gatwick but insisted on being taken to the airport well in advance of when your flight was due. Whilst at the airport you were arrested after an incident where you spat at an airways employee. You were clearly behaving in a bizarre fashion. You appeared at Court the following day, pleaded guilty and were ordered to pay compensation and released. You then made your way to the location where the events that I am concerned with took place.

You spent the night in a garage and stole some tools from that garage. Your behaviour and interaction with members of the public was such that the police were called. The police attended and what followed is clearly depicted on the video evidence that I have seen this afternoon. For reasons that it is difficult to understand you launched a completely unprovoked attack on those police officers with a hammer. Their attempts to taser you were unsuccessful. From what I have seen and heard it is clear that this was an incident of truly terrifying violence. The officers were in fear of their lives and you had no reason to attack them whatsoever.

I have heard from three officers who were at the scene who have made victim impact statements and the effect of this incident upon them was clear for all to see. You were eventually restrained and taken into custody and you have remained in custody now for a calendar year. There were obvious concerns over your mental health from the outset. I have read a series of reports from four psychiatrists prepared over the last 12 months. The final conclusion of those reports can be summarised as saying that they are not convinced that you ever suffered from a psychotic illness, although Dr Lay and Professor Fox are in agreement that you have a tendency to react to stress by having acute psychotic episodes. During those episodes you cannot control your extremely violent behaviour."

9. Adding a little to that summary, the video evidence to which the judge referred was recorded on the body-worn cameras of the officers. They found the appellant in a courtyard. He was carrying a hammer and it seems had other tools in his pockets. He came towards the officers holding the hammer. He ignored all instructions to stop. Two officers tasered him but that did not have any effect other than to anger him. He began to swing the hammer at the officers. They fell back. But one of them, a young female officer, PC Chick, became trapped. She had to dodge to and fro around a pillar, trying to fend the appellant off with her baton, as he swung blows at her with the hammer. She feared that she would be killed or would suffer brain injury if one of the blows struck her. Another officer, PC Young, who was an armed firearms officer, heard her screams. He went to assist her. He described the appellant swinging blows with great force. PC Young contemplated having to use his firearm but instead he bravely put himself between the appellant and PC Chick. He struck the appellant a number of times with a baton, to no effect. PC Young himself was hit at least three times with the hammer. Two of the blows landed on his upper chest, where his stab vest protected him. One of the blows, which must have been a glancing blow, caught him on the neck but fortunately caused no serious injury. Another officer again tasered the appellant: again, without effect. Eventually, by the combined force of a number of officers the appellant was taken to the ground and was, with great difficulty, restrained.
10. Fortunately the only physical injury caused in this terrifying episode was to PC Young, who suffered nothing worse than swelling around the area of his neck and headaches. But unsurprisingly the officers involved in the incident were in fear for their lives. They suffered symptoms of disturbed sleep and anxiety. The judge, as he indicated, heard three of them read their impact statements. One officer broke down whilst doing so. That was an officer who was later diagnosed as suffering from a post traumatic stress disorder as a result of this incident.
11. In his sentencing remarks, having explained his reasons for concluding that life imprisonment was necessary, the learned judge said this at page 5, in relation to his determination of the minimum term:

"I have been referred by both counsel to the guidance from the Sentencing Guidelines Council. I assess these offences within those guidelines as inflicting lesser harm but with higher culpability. It involves attacks on two quite separate police officers with a weapon and those officers are public servants, which is an additional aggravating factor. My assessment of what the appropriate determinate sentence would have been would be a total of 12 years' imprisonment after trial but you are entitled to a discount for your guilty plea entered at the first available opportunity. In the light of the overwhelming nature of the evidence I assess the appropriate reduction as 25% making the notional appropriate determinate sentence one of 9 years' imprisonment. I reduce the recommended term by one-third to represent the time at which he would have been released had I made you the subject of an extended sentence and, as the recommendation runs from today, I also additionally take off the 1 year you have already spent in custody. The arithmetical result of that is that my recommendation of the minimum term you must serve, before you were able to even apply for release on licence, is a period of 5 years from today. That order will be concurrent on both of the attempted section 18 counts."

12. Mr Blackford submits that by assessing those offences as involving lesser harm but higher culpability, the learned judge was correctly placing them into Category 2 of the Sentencing Council's Definitive Guideline on assault cases, for which the guideline identifies a starting point of 6 years' custody and a range from 5 to 9 years. He submits that the judge was then wrong to assess the appropriate determinate sentence after trial as one of 12 years' imprisonment. He reminds us that by section 125 of the Coroners and Justice Act 2009 the court must follow any relevant sentencing guideline unless satisfied that it will be contrary to the interests of justice do so. He points out that the judge in his sentencing remarks did not give any explanation of why the guideline should not be followed in this case. He further submits that the judge was correct to impose concurrent sentences: it was a clear case for doing so, as the offences were committed in the course of a single incident of quite short duration. But, he argues, the notional determinate sentences of 12 years can only be explained if the judge in reality proceeded as if the two offences merited consecutive sentences, and thus doubled the guideline starting point from 6 years to 12 years.
13. We have considered those submissions. We think it appropriate to start by referring to section 143 of the Criminal Justice Act 2003, which provides:

"In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused."

That statutory reference to intended harm is echoed in the Sentencing Guideline, which says at step 1:

"The court should determine the offender's culpability and the harm caused, or intended, by reference only to the factors below..."

15. In the list of factors which follows, the following are, in our view, relevant to the sentence in this case. The factors indicating greater harm include injuries (including psychological harm) which is serious in the context of the offence, which must normally be present; and sustained assault on the same victim. The factors indicating higher culpability include use of a weapon, and intention to cause more serious harm than actually results from the offence.
16. The prosecution here submitted that the case fell within category 1, because of the sustained attack on PC Chick in particular and also because of the serious psychological harm caused to the officers concerned. The learned judge did not accept that submission, though, in our view, he would have been entitled to do so.
17. We next consider, as Mr Blackford rightly asks us to do, the Sentencing Council's Definitive Guideline on totality. The following two passages at pages 5 and 6 respectively summarise familiar principles of sentencing:

"All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore concurrent sentences will ordinarily be longer than a single sentence for a single offence."

And:

"Where concurrent sentences are to be passed the sentence should reflect the overall criminality involved. The sentence should be appropriately aggravated by the presence of the associated offences."

18. It is important to keep those principles in mind when considering the sentencing range in a guideline which relates to a single offence. We agree with counsel, and the judge, that concurrent sentences were appropriate in this case; but that does not mean that the appropriate sentence could not exceed the guideline range for a single offence.
19. Drawing these threads together, we are unable to accept Mr Blackford's submissions. The offences charged in counts 5 and 6 were offences of attempting to cause grievous bodily harm. The arguments based on the guideline fall, we think, into the error of treating those counts as if they charged completed offences in which the harm caused was not serious in the context of a section 18 offence. In reality, these were attempts to cause very serious injury. The evidence plainly showed an intention to cause injury far more serious than that which was actually inflicted. If any one of the hammer blows had struck directly, it is likely that it would have caused injury which was serious even in the context of grievous bodily harm. Serious injury was avoided only through the actions of the officers who were attacked, by the protection afforded to PC Young by his stab test vest, and by good fortune: it was not for want of trying on the appellant's part.
20. In assessing what determinate sentence would have been appropriate if a life sentence were not passed, the judge therefore had to take into account the following features of the offences:

• Two officers, each acting in the course of his or her duty in trying to apprehend a dangerous burglar, were directly attacked, and others were put at risk of injury as they tried to restrain the appellant.

• A weapon was used in an attempt to cause very serious injury to each of the two officers.

• The appellant was undeterred by the repeated use of a taser and a police baton, and it was with only with the greatest difficulty that he was restrained and prevented from achieving his object.

• The offences were gravely aggravated by the appellant's previous conviction for murder, committed as a mature adult and resulting in a sentence from which he had been released less than 4 years before these offences.

21. So far as mitigation is concerned, the appellant had expressed his remorse in letters to the court, and the judge clearly had in mind the awful circumstances of the appellant's childhood, and the mental health issues which were documented in the reports going primarily to the issue of dangerousness.
22. Weighing those considerations, we take the view that the notional determinate sentence of 12 years' imprisonment was stiff, but was not manifestly excessive in length for this truly terrifying outburst of violence against police officers performing their public duty. Accordingly, albeit by a somewhat different route from that taken by the judge, we conclude that there can be no successful challenge to that notional determinate sentence.
23. We do however take the view, with respect to the learned judge, that he fell into error in two respects as he moved from the notional determinate sentence to the minimum term. First, he allowed credit for the guilty pleas of only one-quarter rather than one-third. He did so because of "the overwhelming nature of the evidence". Although the new Definitive Guideline on credit for guilty pleas was not in force at the time of sentencing, and the then current guidance of the Sentencing Guidelines Council permitted a reduction in the credit given for a guilty plea in such circumstances, we take the view that there was no sufficient reason to depart from the normal practice of allowing a full one-third reduction for early guilty pleas. The evidence was indeed overwhelming; but that in itself was not a guarantee that the defendant would plead guilty.
24. Secondly, when taking into account the effect of the early release provisions, the judge reduced the term by one-third, rather than by one-half, on the ground that if he had not passed a life sentence he would have imposed an extended sentence of imprisonment, from which the appellant would not have become eligible for release until he had served two-thirds of the custodial term. With respect to the judge, that approach is inconsistent with section 82A(3)(c) of the Powers of Criminal Courts (Sentencing) Act 2000, which requires the court to take into account the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003, which relates to prisoners serving determinate sentences. It is also inconsistent with the guidance given, by a constitution of this court headed by the Lord Chief Justice, in Attorney-General's Reference No 27 of 2013 (R v Burinskas)[2014] EWCA Crim 334, [2014] 2 Cr App R(S) at paragraphs 32-37.
25. In our judgment, the minimum term must be calculated as follows. The notional determinate sentence must be reduced by one-third to give credit for the guilty pleas. The resultant term of 8 years must then be reduced by half to take account of the early release provisions which would apply to a determinate sentence. Finally, the resultant term of 4 years must be reduced by a further year to reflect the period of time when the appellant was on remand awaiting sentence.
26. We therefore allow the appeal to this extent: in relation to the life sentences imposed on counts 5 and 6, we reduce the minimum term which must expire before the appellant can be considered for release on licence from 5 years to 3 years. That minimum term will take effect from 13th January 2017, the date of sentence. In every other respect the sentences remain as before.
27. We emphasise that the reduction which we have made applies to the minimum term which must expire before the appellant can ask to be considered for release on licence. There is of course no guarantee that he would be released at that stage, or indeed for a very long time afterwards. He will only be released when the Parole Board are satisfied that he is no longer a danger to the public.

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