Jason Hewison [2019] EWCA Crim 1278
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Jason Raymond Hewison [2019] EWCA Crim 1278 concerned an appeal against sentence by the Court of Appeal (Lord Justice Holroyde, Mr Justice Choudhury and His Honour Judge Field QC sitting) which was allowed in part on account of inadequate credit for guilty pleas.
On 26th October 2018 at Newcastle upon Tyne Crown Court before His Honour Judge Sloan QC the appellant pleaded guilty to one offence of domestic burglary contrary to section 9(1)(b) of the Theft Act 1968 and to two offences of robbery contrary to section 8 of that Act. On 18th December 2018 Her Honour Judge Moreland sentenced him as follows: on count one (burglary) to three years’ imprisonment; on count two (the first robbery) to an extended sentence pursuant to section 226A of the Criminal Justice Act 2003 comprising a custodial term of six years and an extended licence period of three years; and on count three (the second robbery) to an identical nine-year extended sentence.
The facts were that Ramesh Lall lived with his sister Sheila Lall in a ground floor flat in Newcastle. Miss Lall suffered from severe learning difficulties and was a vulnerable adult. Mr Lall was her registered carer. During the week prior to 25th September 2018 the appellant had been engaged by the Lalls to carry out casual gardening work and had thus become aware of Miss Lall’s vulnerability. On 25th September 2018 at about 11.15pm Mr Lall awoke to find the appellant standing at his bedside. The appellant demanded money and when Mr Lall refused the appellant thrust his hand into Mr Lall’s trouser pocket, took his wallet and removed £80 in cash. He then demanded jewellery or anything else of value. Mr Lall said that he did not have anything and asked the appellant not to hurt him. The appellant then left. Miss Lall had been in the kitchen throughout and was unaware there had been a burglary until her brother told her. The following night, 26th September 2018, the appellant returned armed with a screwdriver. At about 10pm he walked into the flat through an unlocked door and made towards Mr Lall’s bedroom. Miss Lall saw and followed him and screamed. Mr Lall, alerted by his sister’s scream, tried to put himself between the appellant and his sister. The appellant drew the screwdriver and threatened Mr Lall with it, saying “Give me money now or I will cut you”. It was apparent to Mr Lall that the appellant had been drinking. He proffered his wallet and the appellant took it and removed £25. He then threw the wallet to the floor, shouting “Is that all you have?” Miss Lall said that she had some money in her purse in the kitchen. The appellant, still armed with the screwdriver, took her to the kitchen and removed money from her purse. He then returned to Mr Lall’s bedroom and demanded anything else of value. Mr Lall handed over a tablet computer and the appellant also took three mobile telephones before leaving by the back door. His parting shot was “Don’t call the police, because I know where you live”. The police were quickly informed and the appellant was soon arrested. He was still in possession of the tablet computer and two of the mobile telephones. He declined to answer questions in interview. The effect of the offences upon the victims was profound; they were terrified by what had happened in their home and were contemplating moving to sheltered accommodation.
The appellant was 42 years old at the time of sentence and had 25 previous convictions spanning the period between February 1992 and March 2018. His relevant convictions included burglary of a dwelling with intent to cause unlawful damage in 1997; burglary of a dwelling again in 1997 and in 2005; kidnapping, possession of an offensive weapon in a public place and causing grievous bodily harm with intent in 1998; theft from a dwelling in 2016; and assault occasioning actual bodily harm in March 2018. Also relevant was an offence of possessing an imitation firearm with intent and affray in 1996.
Following the guilty plea at the plea and trial preparation hearing His Honour Judge Sloan QC ordered a pre-sentence report and a mental health assessment for the purposes of assessing whether the appellant was a dangerous offender. The appellant declined to engage with the Mental Health Liaison Team at the Crown Court and there was no pre-sentence report available for the sentencing judge on 18th December. There was a note from the probation officer on the Digital Case System explaining that she had been unable to interview the appellant because of a problem with the prison video-link and had been unable to arrange a further appointment before the hearing. She had been told by the appellant’s solicitors that the appellant wanted the sentencing hearing to go ahead, that they were not concerned about having a pre-sentence report, and that if the judge wanted one a four-week adjournment would be required. Her Honour Judge Moreland raised the question with Mr Davis, who represented the appellant both at sentence and on appeal. The judge stated in the plainest of terms that she intended to determine the issue of whether the appellant was a dangerous offender and gave Mr Davis two options: to proceed without a pre-sentence report or to adjourn so that a report could be prepared. The judge was told that the appellant was anxious to proceed and did not want to adjourn for a report. The judge proceeded to pass sentence.
As for count one, the burglary on 25th September 2018, by reference to the relevant definitive guideline the judge concluded that this was a category one offence because there was greater harm (Mr Lall was at home and encountered the appellant at his bedside as he awoke) and higher culpability (the appellant had targeted the premises, being aware of the vulnerability of the Lalls). The appropriate starting point for count one was thus three years’ custody and the category range was two to six years. Taking into account the aggravating features, including the appellant’s previous convictions, the fact that he was under the influence of alcohol, the fact that it was a night-time burglary, and the profound impact upon the victims, the judge concluded that after trial the sentence would be four years’ imprisonment. With 25 per cent credit for the guilty plea this was reduced to three years’ imprisonment.
When dealing with counts two and three the judge applied the guideline for robbery in a dwelling. She found that culpability fell into category B because the appellant had produced a weapon but not a bladed article, and harm fell into category two because other characteristics for categories one and three were absent. The starting point was therefore five years’ custody and the range was four to eight years. The judge found a number of aggravating features: the appellant targeted vulnerable victims; he threatened them so that they would not go to the police; this was a prolonged incident which took place at night and when the appellant was under the influence of alcohol; and the appellant had previous convictions for offences committed in people’s homes. The judge concluded that before credit for the guilty plea the appropriate sentence would be eight years’ imprisonment on each count and that the credit for the guilty pleas was 25 per cent. Accordingly the sentence in respect of both robbery offences would be six years’ imprisonment. She declined to allow full credit for the guilty pleas because the appellant had not pleaded guilty at the lower court. The judge found that an indication of plea at the lower court was not sufficient.
The judge then moved on to consider dangerousness. She concluded that there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences and further found that conditions (a) and (b) under section 226A were met because of the appellant’s previous conviction for an offence contrary to section 18 of the Offences against the Person Act 1861 and the judge’s conclusion that a six-year custodial term was appropriate. The judge gave her reasons briefly. It was clear that she took into account the circumstances of the current offences which she found “have indicators of dangerousness”. She also took account of the appellant’s previous convictions, particularly those for specified offences, namely the offences involving the possession of an imitation firearm, affray, kidnapping, possession of an offensive weapon and causing grievous bodily harm with intent. She was aware of the circumstances of those offences. As for the fact that a number of them took place some years ago, the judge stated that this made it all the more concerning that here was another example of the appellant entering the home of another person and committing serious offences therein. She described the offences as ruthless and despicable. She formed the view that no order she could make would protect the public from the risk that the appellant posed and so she concluded that he was a dangerous offender. He qualified for an extended sentence both by the length of the custodial sentence appropriate in the case and by the fact that he had a previous section 18 offence in his previous convictions. The judge then passed the extended sentences.
The appeal focused upon the extended sentences. There were two grounds of appeal for which the appellant was granted leave: first, that the imposition of an extended sentence was manifestly excessive because the appellant did not meet the dangerousness criteria; and second, that an extended sentence should not have been imposed in the absence of a pre-sentence report. There was a further third ground of appeal, namely that the appellant had indicated guilty pleas at the magistrates’ court and was thus entitled to full credit for his pleas rather than the 25 per cent that was allowed. Although leave on the third ground was not granted by the single judge, Mr Davis renewed the application before the court and sought the necessary extension of time.
It was submitted on the appellant’s behalf that the judge was wrong to conclude that he was a dangerous offender because first the more serious specified violent offences that resulted in serious harm were committed 20 years or more ago, and second the appellant caused no serious physical harm in the course of the robberies committed in September 2018. It followed, Mr Davis submitted, that the risk of serious harm was not significant.
The court held that the judge accurately identified the issue that she had to determine under section 226A of the 2003 Act, namely whether the court considered that there was a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. The judge was therefore concerned with an assessment of future risk posed by the appellant. In making that assessment she took account of his past offending and clearly had well in mind the circumstances of both the robberies and the earlier burglary. On the basis of the factors that she considered the judge reached a reasoned decision that the appellant did indeed satisfy the statutory criteria. The court saw no reason to interfere with the decision which it found she reached carefully and on a proper and reasonable basis. The appellant’s previous convictions were plainly relevant notwithstanding the age of some of them. The court noted in any event that the judge might also have relied upon the conviction for the offence of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861 committed in March 2018, a more recent specified offence. The court also found that the absence of serious physical harm on 26th September 2018 did not detract from the conclusion that there remained a significant risk of serious harm in the future, as the judge found, particularly given the clear evidence of serious harm caused by the appellant in the past. Indeed, the court found that the absence of serious harm in the course of the robberies was perhaps fortuitous. It followed that in the court’s judgment the judge correctly applied the statutory test to the facts of the case. The court found that her decision was neither wrong in principle nor wrong in law.
The second ground of appeal concerned the absence of a pre-sentence report. It was submitted on the appellant’s behalf that the judge should have erred on the side of caution and adjourned the case to obtain such a report. The court noted that it was clear that nothing arose during the course of the hearing that caused the judge to change the view that she had formed at the beginning that no pre-sentence report was necessary. In the court’s judgment, in the particular circumstances that it had already outlined, the judge was entitled to reach the conclusion that a pre-sentence report was not necessary. The purpose of the report was well-known to the parties and the appellant was given the opportunity to seek a further adjournment. He declined to do so. Thus the judge was fully entitled to proceed as she did. In the event the court had the benefit of a pre-appeal report prepared by a probation officer pursuant to the order of the single judge. Nothing that the court read in that report cast any doubt upon the assessment made by Her Honour Judge Moreland of dangerousness in the case. The absence of a pre-sentence report on 18th December 2018 therefore did not invalidate her decisions. Having found that conditions (a) and (b) in section 226A were met, the judge went on to exercise her discretion to pass an extended sentence. Her reason for so doing was that an extended sentence was necessary to protect the public. Again, the court found that her decision was unimpeachable and that the extended sentence was wholly justified. Nor did the court find that the extended sentences in the case were manifestly excessive.
The court then turned to the third ground of appeal. At his first appearance before the magistrates on 28th September 2018 the appellant indicated in open court that he was likely to plead guilty to the charges of robbery and burglary. That much was clear from the Case Management Questionnaire from that hearing that was uploaded to the Digital Case System. The appellant then entered his guilty pleas at the first opportunity in the Crown Court. Robbery of course was an indictable only offence. Thus the appellant was unable to do any more than indicate his guilty plea to the magistrates. It followed, in the court’s view, that the judge was incorrect to say that he should have pleaded guilty at that stage and to reduce his credit accordingly. Having regard to the guideline on the reduction in sentence for a guilty plea, the proper discount in the case should be and should have been one-third.
The court therefore granted the necessary extension of time and gave leave to appeal on ground three. It quashed the sentences in the case and substituted the following sentences which took account of the correct one-third credit for guilty pleas: on count one (burglary) the sentence would be 32 months’ imprisonment; on count two (the first of the robberies) there would be an extended sentence pursuant to section 226A of the Criminal Justice Act 2003 of eight years and four months, comprising a custodial term of five years and four months and an extended licence of three years; and on count three (the second robbery) there would be an identical extended sentence of eight years and four months, comprising a custodial term of five years and four months and an extended licence period of three years. The sentences on counts two and three remained concurrent with each other but consecutive to the sentence on count one.
In short, the appeal was allowed to the limited extent of correcting the discount for guilty pleas from 25 per cent to one-third, resulting in reduced custodial terms, but the judge’s dangerousness findings and imposition of extended sentences were upheld.