Rodney Cox [2019] EWCA Crim 71
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In R v Rodney Cox [2019] EWCA Crim 71, the Court of Appeal upheld a sentence of seven months’ imprisonment imposed for assault with intent to resist arrest, whilst clarifying the correct practice to be followed when varying a sentence after the sentencing hearing.
Mr Cox pleaded guilty before the magistrates to possession of cannabis, using a vehicle without insurance and driving without a licence. In the Crown Court he pleaded guilty to criminal damage. He was tried before a jury on two further counts, being acquitted of going equipped for theft but convicted of assault with intent to resist arrest contrary to section 38 of the Offences against the Person Act 1861. The Recorder sentenced him to seven months’ imprisonment on count 3, with no separate penalty on the other matters save that his licence was endorsed with six penalty points.
On 10 August 2018 a police constable on his own located a Vauxhall Corsa with false registration plates and found Mr Cox inside. When the officer illuminated his lights Mr Cox drove off, reversed but was obstructed, then rammed the police vehicle twice causing damage. Mr Cox left the vehicle and attempted to hide but was found crouching at the rear. Initially compliant, he then lunged at the officer, pushed him onto the bonnet, and at one point took him to the ground. The officer landed on his knee. A struggle ensued during which the officer tried to handcuff Mr Cox to a gate but he resisted all attempts. The officer used captor spray and, when that failed to achieve control, struck Mr Cox four or five times on the head with the canister. The officer sustained injuries to his elbow, knee, lower back and wrist, which though not significant prevented him from working for a short time.
Mr Cox had a very poor record with convictions for 49 offences beginning in 2008, including burglary, theft, handling, two offences of assault of a constable in 2009, aggravated vehicle taking, breaches of court orders and a public order offence. He had received custodial sentences on several previous occasions. He had problems with drugs, significant personal problems in his family life, and accepted psychiatric issues including a diagnosis of schizophrenia. The Recorder took the view that a pre-sentence report was unnecessary.
The Recorder reviewed the facts fully and carefully. She found that the assault was sustained but was not of higher culpability, placing it initially within category 2 of the relevant guideline with a starting point of a medium level community order and a range of a low level community order to a high level community order. However, she stated that whilst she had regard to the guideline she was entitled to move away from it and felt that the guideline did not reflect the ferocious violent struggle that the officer had to deal with whilst trying to carry out his job. She identified as aggravating features the location of the offence, the fact that the officer was on his own with no crew to turn to for assistance, and Mr Cox’s previous convictions. She regarded the offending as an escalation. She accepted that Mr Cox had problems in his background and the diagnosis of schizophrenia but found that this did not justify his actions. She emphasised that police officers had a very difficult job protecting the community without having to deal with such violence, and that no one, even police constables who faced risk daily, expected to go to work to be subjected to such treatment.
At the conclusion of her sentencing remarks the Recorder stated in broad terms that Mr Cox would serve half the sentence bearing in mind that he had already served a substantial amount of time whilst subject to a qualifying curfew, which would come off his sentence. She did not, however, specify the relevant period of days as required by section 240A(8) of the Criminal Justice Act 2003 nor did she follow the precise procedure approved in R v Hoggard [2014] 1 Cr App R(S) 42 and R v Marshall [2016] 1 Cr App R(S) 45. Subsequently, on 18 December 2018, following written communications and submissions from both parties, the qualifying curfew period was by agreement specified by the Recorder on the papers as eighteen days and placed on the court record. In addition, it having been noticed after the sentencing hearing that Mr Cox already had points endorsed on his licence, under the totting-up procedure he was disqualified from driving for ten months. This was also directed by the Recorder administratively on the papers. All this was done within the 56 day period specified in section 155(1) of the Powers of Criminal Courts (Sentencing) Act 2000.
On appeal, Mr Waller submitted on behalf of Mr Cox that the sentence of seven months’ imprisonment was excessive. He contended that there was no justification for the Recorder departing from the sentencing guideline appropriate to category 2 offending and, at all events, no justification for departing from it to the degree which she did. He submitted that the Recorder overstated matters by describing the assault as ferocious and asserted that it was no more than pushing and shoving. He pointed out that, with regard to previous violent offending, Mr Cox was relatively lightly convicted notwithstanding all his other convictions. He relied on the mental health problems and personal difficulties and complained that the Recorder would have been assisted by obtaining a pre-sentence report.
Lord Justice Davis, giving the judgment of the court, rejected these submissions. The Recorder had had the benefit of conducting the trial and was fully entitled to find the attack to be ferocious. She fully explained why she was departing from the initial guideline range appropriate to this offending, including the ferocity of the assault and the appellant’s antecedent history. The Recorder was entitled to move up as she did and to impose a sentence of immediate custody of seven months. The sentence had to reflect the totality of the offending, which not only included the matters of driving without insurance but also the criminal damage to the police car. It was a matter for the Recorder whether she would be assisted by a pre-sentence report. The court dismissed the appeal against sentence on the grounds advanced.
The court went on to address the subsequent variation of sentence by administrative procedures when there was no public court hearing. The Recorder had not specified the actual number of days representing the qualifying curfew period at the time she pronounced sentence, although she had in broad terms said that whatever those qualifying days were they would come off the sentence. Lord Justice Davis emphasised that it was particularly important that the correct deduction for time spent on qualifying curfew be made and announced in court at the time of sentence, as the statute required, especially where a short custodial term was imposed, otherwise the prison warrant might not be correctly completed at the time and subsequent correction risked not occurring before the release date. It remained in all cases most important that counsel for the prosecution and defence ascertain the same figure of qualifying curfew time by the time of the sentencing hearing itself.
The number of days to be deducted was subsequently, after the sentencing hearing, the subject of agreement between the parties once the true position had been identified. Lord Justice Davis stated that he could see no objection to such a matter being dealt with administratively on the papers if agreed, although he suggested that good practice should mean that in such circumstances the actual pronouncement of that period of qualifying time to be deducted from sentence should be made in open court, which should take a matter of seconds. He could see no real objection in such circumstances for that pronouncement to be made by some judge other than the original sentencing judge if that judge was not available for that very limited purpose, provided the original sentencing judge had approved the matter.
However, the other variation which was made administratively on the papers in this particular case, namely the adoption of the totting-up procedure and the consequent imposition of a period of disqualification from driving of ten months pursuant to that totting-up procedure, was altogether a different matter. In the court’s view, such a matter should not have been done administratively on the papers. It was clear that all concerned were trying to avoid the expense and inconvenience involved in a further court hearing, and both sides were afforded the opportunity to put in written representations and did so, with Mr Cox’s counsel opposing the making of a disqualification order, and both sides were content to proceed on such a footing. Nevertheless, potential disqualification from driving in itself was a serious matter and would potentially involve an increase in the overall sentence. Accordingly, such matter should have been dealt with in the ordinary way in open court, with Mr Cox having the opportunity to be present, if need be by video-link.
Lord Justice Davis stressed that the erstwhile requirement that all matters relating to an adjustment to sentence should be dealt with in open court, as articulated in older cases such as R v Kent (1983) 77 Cr App R 120, had to an extent, for the purposes of proceedings in the Crown Court, been overtaken by the Criminal Procedure Rules, in particular Criminal Procedure Rule 28.4. That rule in general terms empowered the court to direct variations of sentence which could be made at a hearing or without a hearing. However, sub-rule (4) provided restrictions on the power to make variations in a defendant’s absence and in particular provided that a court might not do so if the proposed variation would operate so as to increase the sentence.
It was for that reason alone in the present case that, even though the procedure followed was with the agreement of all concerned, the variation relating to disqualification should have been debated and decided in open court and in Mr Cox’s presence. There was a further consideration. Such a sentence variation was also in principle required to be done in open court just so that the public could be aware of what had occurred. As stated in cases such as R v Pinkerton [2017] 1 Cr App R(S) 47 at paragraph 8, a case where there was in fact a downward adjustment of a concurrent custodial sentence which did not impact on the overall sentence, such alterations should be done openly so that justice might be seen to be done. Likewise, in R v Warren [2017] 2 Cr App R(S) 5, the general desirability of re-sentencing taking place in the presence of the defendant and in court was stressed.
Whilst it was easy to understand the attractions of administrative convenience such as occurred here, particularly perhaps where the sentencing judge was not a full-time judge based at a particular court centre, those administrative attractions should not be permitted routinely to prevail over the delivery of open justice. Nevertheless, in the present case the failure to make the disqualification order following a hearing in public in the presence of Mr Cox did not have the consequence that that aspect of the sentence was a nullity. It remained a valid sentence, albeit subject to any alteration by the Court of Appeal. Mr Waller accepted as much and also pragmatically accepted that all the arguments which he wished to raise were raised below in writing and that the result reached by the Recorder was justified and would have been the same even had there been a public court hearing. Sensibly, he pursued no challenge to this aspect of the sentence, which accordingly stood.
Lord Justice Davis added that this was a very fair stance to be taken but that disqualification could often have its difficulties, not least sometimes in the context of Needham considerations. That yet further reinforced the general need for such aspects of a sentence to be debated in open court and in the presence of the defendant. Mr Heptonstall for the Crown suggested that the Criminal Procedure Rules Committee might wish to consider issues of this particular kind, perhaps with a view to promulgating a Practice Direction to supplement Criminal Procedure Rule 28.4. The court recorded that suggestion but expressed no view on it one way or the other.
In short, the sentence of seven months’ imprisonment for assault with intent to resist arrest was upheld, the court finding that the Recorder was entitled to depart from the sentencing guideline in the circumstances, but the court clarified that whilst administrative variation to specify agreed qualifying curfew periods was acceptable, any variation involving disqualification or an increase in sentence should be debated and decided in open court in the defendant’s presence.
Hoggard [2013] EWCA Crim 1024, [2014] 1 Cr App R (S) 42
R v Marshall [2016] 1 Cr App R(S) 45
R v Pinkerton [2017] 1 Cr App R(S) 47