Solomons [2019] EWCA Crim 807
Summary
In R v Solomons [2019] EWCA Crim 807 the Court of Appeal (Mrs Justice O’Farrell, Lord Justice Haddon-Cave and Mr Justice Popplewell) allowed an appeal against sentence for two offences of assisting an offender contrary to section 4(1) of the Criminal Law Act 1967.
Mr Solomons had pleaded guilty on 18 June 2018 at Reading Crown Court. On 16 January 2019 Her Honour Judge Morris sentenced him to six months’ imprisonment on count one, assisting by taping over number plates to impede the apprehension or prosecution of Jason Gardner who had committed criminal damage, and two years’ imprisonment consecutive on count two, assisting by concealing CCTV to impede the apprehension or prosecution of Mr Gardner who had committed grievous bodily harm with intent, making a total of thirty months’ imprisonment. Credit was given for 110 days of qualifying curfew and 28 days on remand.
The underlying facts were that on 9 May 2018 Charlie Ward was ejected from a public house after throwing a drink at the landlady, Emma Mead. Mr Gardner, Miss Mead’s partner, remonstrated with Mr Ward outside and Mr Ward threatened him with a knife before leaving. Later that evening Mr Solomons telephoned Mr Gardner to inform him that Mr Ward was at the Earl of Cornwall public house about one mile away. Mr Gardner drove there and slashed the tyres of Mr Ward’s van. Mr Solomons met Mr Gardner outside and they returned together to the Long Barn pub in Mr Gardner’s transit van. Mr Gardner and Mr Solomons put masking tape over the number plates on the van. Mr Solomons accepted this was done to assist Mr Gardner to impede apprehension and prosecution for the criminal damage. Mr Gardner then armed himself with a balaclava, surgical gloves and a long metal baton and returned to the Earl of Cornwall pub with Mr Solomons. Mr Gardner entered the pub whilst Mr Solomons remained outside. Mr Gardner hit Mr Ward on the head with the baton causing a laceration. Mr Ward overpowered Mr Gardner and inflicted a substantial number of injuries with a knife. Mr Gardner was taken to hospital but died the following day. Mr Ward was convicted of his murder. When Mr Solomons heard screaming from inside the pub he ran back to the Long Barn pub, disconnected the CCTV unit and hid it in the loft. Mr Solomons accepted this was done to assist Mr Gardner to impede apprehension or prosecution for the violence he assumed had been committed. The CCTV unit was later retrieved by Miss Mead and handed to police.
Mr Solomons was arrested several days later and admitted in interview taping over the number plates and concealing the CCTV. He had initially been charged with perverting the course of justice and encouraging or assisting the commission of an offence but the indictment was limited to assisting an offender. A new indictment containing two separate counts of assisting an offender was proffered on 11 June 2018 and Mr Solomons pleaded guilty on 18 June 2018. He submitted a basis of plea to the effect that he did not know in advance that Mr Gardner intended to attack Mr Ward in the way that he did and did not know at the time he hid the CCTV that Mr Gardner had committed an offence of grievous bodily harm with intent. The basis of plea was not accepted by the prosecution but there was no Newton hearing to determine the dispute.
At the date of sentencing Mr Solomons was 40 years old with relevant previous convictions. In 2009 he had received a suspended sentence for perverting the course of justice and section 20 unlawful wounding. However, he had completed that sentence without breach, rehabilitated himself, obtained employment and carried out significant charity work. He had two children with whom he had a close and positive relationship. The judge refused his application for an adjournment to obtain a pre-sentence report on the basis that it would not assist the court.
In passing sentence the judge determined firstly that the nature and criminality of Mr Gardner’s actions was serious and substantial. He had orchestrated a deliberate planned attack on Mr Ward and ensured his victim could not escape by slashing the tyres of his van. He acquired weapons, gloves and a disguise before seeking to perpetrate the attack. Secondly, it was not appropriate to isolate different elements of Mr Gardner’s offending and set Mr Solomons’ offending against each separate element. Thirdly, at the time of the first offence Mr Solomons knew it was precursor to the attack on Mr Ward with a weapon to cause really serious bodily harm. Fourthly, at the time of the second offence he knew that Mr Gardner had entered the pub armed with a weapon, wearing surgical gloves and a disguise to attack Mr Ward with intent to cause him grievous bodily harm. Fifthly, the offences did not have the effect of damaging the interests of justice, although that was not assisted by Mr Solomons. Sixthly, the nature and seriousness of the offences crossed the custody threshold and a suspended sentence was not appropriate. Finally, Mr Solomons had rehabilitated himself since 2009 and there was significant personal mitigation including the loss of his friend Mr Gardner. On count one the judge imposed nine months’ imprisonment reduced to six months for the guilty plea. On count two she imposed three years’ imprisonment reduced to two years for the guilty plea. She determined that the sentences should run consecutively.
The grounds of appeal advanced by Mr Butler were firstly that the judge adopted a factual basis for sentence that went well beyond the counts to which Mr Solomons pleaded guilty, contrary to the well-established authority in R v Canavan [1998] 1 Cr App R (S) 243 and R v Courtie [1984] AC 463. Secondly, the sentence on count one was greater than the sentence that could possibly have been imposed for the index offence committed by Mr Gardner, contrary to sentencing practice. Thirdly, the sentence on count two was excessive and did not adequately reflect the sentencing principles established in the Attorney General’s Reference No.16 of 2009 (Yates) [2010] 2 Cr App R (S) 11. Fourthly, the judge failed to give any or adequate consideration to reported authorities placed before her so as to achieve consistency in approach. Fifthly, the judge wrongly imposed consecutive sentences. Although not relied upon as a separate ground, Mr Butler also submitted that the judge wrongly refused to order a pre-sentence report and consequently did not give adequate consideration as to whether the sentence could or should be suspended.
The Court of Appeal considered that the judge had strayed from the principle established in Courtie and Canavan that a defendant is not to be convicted of any offence unless and until his guilt is proved and he may be sentenced only for an offence proved against him by admission or verdict. Mrs Justice O’Farrell stated that both counts on the indictment to which Mr Solomons pleaded guilty were defined as ex post facto offences, that is each alleged conduct by Mr Solomons after an index offence committed by the offender. The offence identified in each case was limited to assisting Mr Gardner in order to impede apprehension and prosecution of a specified offence. Although the judge was entitled to conclude that Mr Solomons must have known that Mr Gardner had committed criminal damage in the case of count one and committed grievous bodily harm with intent or another arrestable offence in the case of count two, she was not entitled to find that they formed part of Mr Gardner’s planned attack on Mr Ward. She inappropriately described count one as a precursor to the main event, thereby wrongly linking the two matters in her mind and attributing responsibility to Mr Solomons for the attack.
In relation to count one, the court noted that the principles applicable when assessing the appropriate sentence for assisting an offender are set out in Yates. The court must consider the nature and extent of the criminality of the offender for whom assistance was provided, the nature and extent of the assistance actually provided, and the extent to which the efforts of assisting the offender damaged the interests of justice. The index offence in respect of count one was Mr Gardner’s criminal damage, namely slashing the van tyres. The court accepted that the value of the tyres must have been less than £5,000 and therefore the maximum sentence for the index offence would be three months’ imprisonment. Against that maximum the sentence of nine months’ imprisonment prior to credit for the guilty plea was manifestly excessive. The court agreed the judge wrongly sentenced Mr Solomons based on her assessment that he participated in or shared responsibility for the attack on Mr Ward. A reasonable and proportionate approach would have been to determine the sentence on count two, taking into account the additional criminality involved in count one, and then fix a minimum concurrent sentence on count one. The court considered that an appropriate sentence on count one would be one and a half months’ imprisonment, reduced to one month for the guilty plea, to run concurrently with the sentence on count two.
In relation to count two, the court considered the authorities of R v Khatab [2008] 2 Cr App R (S) 94, R v Roberts [2008] 2 Cr App R 59, R v Worthington-Hale [2011] 1 Cr App R 64 and R v Sula [2017] EWCA Crim 206. These authorities were placed before the judge when sentencing. As noted by McCombe LJ in Sula, these cases are very fact specific but in the absence of specific Sentencing Guidelines the court always seeks to achieve a degree of consistency in its approach to sentencing on similar cases. The court considered each of the factors identified in Yates. Firstly, the judge was entitled to find that the index offence in respect of count two was serious and substantial. The parties agreed that the section 18 grievous bodily harm offence with intent was a category 2 offence under the relevant Sentencing Guidelines, giving a starting point of six years’ imprisonment and a range of five to nine years. There were two factors indicating higher culpability: premeditation and the use of a weapon. Mr Solomons accepted that there were statutory aggravating factors including the time and location of the offence in a public place in front of others. Therefore there must have been a realistic prospect that the index offence would have attracted a sentence above the starting point. Secondly, the court accepted that the nature and extent of the assistance provided by Mr Solomons to Mr Gardner as set out in the indictment was not likely to be particularly effective, but the intention was to conceal evidence of the events leading up to the attack on Mr Ward. The concealment was not of significant duration but as the judge correctly observed that was because Miss Mead found the CCTV unit; Mr Solomons did not hand it in. In respect of the third factor, the court accepted that the interests of justice were not significantly affected by Mr Solomons’ offending. Taking into account all of those factors, the court judged that the sentence of three years’ imprisonment prior to reduction for the guilty plea was out of line with the other cases and was manifestly excessive. The court considered that a sentence of two years would be appropriate, reduced to sixteen months following credit for the guilty plea.
Turning to the suspended sentence issue, although this was not advanced as a separate ground, the court considered it. The judge had expressly considered and rejected the necessity for a pre-sentence report. The court was of the view that generally where it is arguable that sentences might fall within the range of custodial sentence that could be suspended it is advisable to obtain a pre-sentence report. However, the failure to obtain a pre-sentence report does not invalidate the sentence. The court judged that the judge was entitled to conclude that the seriousness of the offending demanded an immediate custodial sentence, particularly given Mr Solomons’ relevant previous conviction for conduct intended to pervert the course of justice for which he had received a suspended sentence.
In short, the appeal was allowed, the sentence on count one was reduced to one month’s imprisonment concurrent, the sentence on count two was reduced to sixteen months’ imprisonment, and the total sentence became sixteen months’ imprisonment.
Mr Solomons had pleaded guilty on 18 June 2018 at Reading Crown Court. On 16 January 2019 Her Honour Judge Morris sentenced him to six months’ imprisonment on count one, assisting by taping over number plates to impede the apprehension or prosecution of Jason Gardner who had committed criminal damage, and two years’ imprisonment consecutive on count two, assisting by concealing CCTV to impede the apprehension or prosecution of Mr Gardner who had committed grievous bodily harm with intent, making a total of thirty months’ imprisonment. Credit was given for 110 days of qualifying curfew and 28 days on remand.
The underlying facts were that on 9 May 2018 Charlie Ward was ejected from a public house after throwing a drink at the landlady, Emma Mead. Mr Gardner, Miss Mead’s partner, remonstrated with Mr Ward outside and Mr Ward threatened him with a knife before leaving. Later that evening Mr Solomons telephoned Mr Gardner to inform him that Mr Ward was at the Earl of Cornwall public house about one mile away. Mr Gardner drove there and slashed the tyres of Mr Ward’s van. Mr Solomons met Mr Gardner outside and they returned together to the Long Barn pub in Mr Gardner’s transit van. Mr Gardner and Mr Solomons put masking tape over the number plates on the van. Mr Solomons accepted this was done to assist Mr Gardner to impede apprehension and prosecution for the criminal damage. Mr Gardner then armed himself with a balaclava, surgical gloves and a long metal baton and returned to the Earl of Cornwall pub with Mr Solomons. Mr Gardner entered the pub whilst Mr Solomons remained outside. Mr Gardner hit Mr Ward on the head with the baton causing a laceration. Mr Ward overpowered Mr Gardner and inflicted a substantial number of injuries with a knife. Mr Gardner was taken to hospital but died the following day. Mr Ward was convicted of his murder. When Mr Solomons heard screaming from inside the pub he ran back to the Long Barn pub, disconnected the CCTV unit and hid it in the loft. Mr Solomons accepted this was done to assist Mr Gardner to impede apprehension or prosecution for the violence he assumed had been committed. The CCTV unit was later retrieved by Miss Mead and handed to police.
Mr Solomons was arrested several days later and admitted in interview taping over the number plates and concealing the CCTV. He had initially been charged with perverting the course of justice and encouraging or assisting the commission of an offence but the indictment was limited to assisting an offender. A new indictment containing two separate counts of assisting an offender was proffered on 11 June 2018 and Mr Solomons pleaded guilty on 18 June 2018. He submitted a basis of plea to the effect that he did not know in advance that Mr Gardner intended to attack Mr Ward in the way that he did and did not know at the time he hid the CCTV that Mr Gardner had committed an offence of grievous bodily harm with intent. The basis of plea was not accepted by the prosecution but there was no Newton hearing to determine the dispute.
At the date of sentencing Mr Solomons was 40 years old with relevant previous convictions. In 2009 he had received a suspended sentence for perverting the course of justice and section 20 unlawful wounding. However, he had completed that sentence without breach, rehabilitated himself, obtained employment and carried out significant charity work. He had two children with whom he had a close and positive relationship. The judge refused his application for an adjournment to obtain a pre-sentence report on the basis that it would not assist the court.
In passing sentence the judge determined firstly that the nature and criminality of Mr Gardner’s actions was serious and substantial. He had orchestrated a deliberate planned attack on Mr Ward and ensured his victim could not escape by slashing the tyres of his van. He acquired weapons, gloves and a disguise before seeking to perpetrate the attack. Secondly, it was not appropriate to isolate different elements of Mr Gardner’s offending and set Mr Solomons’ offending against each separate element. Thirdly, at the time of the first offence Mr Solomons knew it was precursor to the attack on Mr Ward with a weapon to cause really serious bodily harm. Fourthly, at the time of the second offence he knew that Mr Gardner had entered the pub armed with a weapon, wearing surgical gloves and a disguise to attack Mr Ward with intent to cause him grievous bodily harm. Fifthly, the offences did not have the effect of damaging the interests of justice, although that was not assisted by Mr Solomons. Sixthly, the nature and seriousness of the offences crossed the custody threshold and a suspended sentence was not appropriate. Finally, Mr Solomons had rehabilitated himself since 2009 and there was significant personal mitigation including the loss of his friend Mr Gardner. On count one the judge imposed nine months’ imprisonment reduced to six months for the guilty plea. On count two she imposed three years’ imprisonment reduced to two years for the guilty plea. She determined that the sentences should run consecutively.
The grounds of appeal advanced by Mr Butler were firstly that the judge adopted a factual basis for sentence that went well beyond the counts to which Mr Solomons pleaded guilty, contrary to the well-established authority in R v Canavan [1998] 1 Cr App R (S) 243 and R v Courtie [1984] AC 463. Secondly, the sentence on count one was greater than the sentence that could possibly have been imposed for the index offence committed by Mr Gardner, contrary to sentencing practice. Thirdly, the sentence on count two was excessive and did not adequately reflect the sentencing principles established in the Attorney General’s Reference No.16 of 2009 (Yates) [2010] 2 Cr App R (S) 11. Fourthly, the judge failed to give any or adequate consideration to reported authorities placed before her so as to achieve consistency in approach. Fifthly, the judge wrongly imposed consecutive sentences. Although not relied upon as a separate ground, Mr Butler also submitted that the judge wrongly refused to order a pre-sentence report and consequently did not give adequate consideration as to whether the sentence could or should be suspended.
The Court of Appeal considered that the judge had strayed from the principle established in Courtie and Canavan that a defendant is not to be convicted of any offence unless and until his guilt is proved and he may be sentenced only for an offence proved against him by admission or verdict. Mrs Justice O’Farrell stated that both counts on the indictment to which Mr Solomons pleaded guilty were defined as ex post facto offences, that is each alleged conduct by Mr Solomons after an index offence committed by the offender. The offence identified in each case was limited to assisting Mr Gardner in order to impede apprehension and prosecution of a specified offence. Although the judge was entitled to conclude that Mr Solomons must have known that Mr Gardner had committed criminal damage in the case of count one and committed grievous bodily harm with intent or another arrestable offence in the case of count two, she was not entitled to find that they formed part of Mr Gardner’s planned attack on Mr Ward. She inappropriately described count one as a precursor to the main event, thereby wrongly linking the two matters in her mind and attributing responsibility to Mr Solomons for the attack.
In relation to count one, the court noted that the principles applicable when assessing the appropriate sentence for assisting an offender are set out in Yates. The court must consider the nature and extent of the criminality of the offender for whom assistance was provided, the nature and extent of the assistance actually provided, and the extent to which the efforts of assisting the offender damaged the interests of justice. The index offence in respect of count one was Mr Gardner’s criminal damage, namely slashing the van tyres. The court accepted that the value of the tyres must have been less than £5,000 and therefore the maximum sentence for the index offence would be three months’ imprisonment. Against that maximum the sentence of nine months’ imprisonment prior to credit for the guilty plea was manifestly excessive. The court agreed the judge wrongly sentenced Mr Solomons based on her assessment that he participated in or shared responsibility for the attack on Mr Ward. A reasonable and proportionate approach would have been to determine the sentence on count two, taking into account the additional criminality involved in count one, and then fix a minimum concurrent sentence on count one. The court considered that an appropriate sentence on count one would be one and a half months’ imprisonment, reduced to one month for the guilty plea, to run concurrently with the sentence on count two.
In relation to count two, the court considered the authorities of R v Khatab [2008] 2 Cr App R (S) 94, R v Roberts [2008] 2 Cr App R 59, R v Worthington-Hale [2011] 1 Cr App R 64 and R v Sula [2017] EWCA Crim 206. These authorities were placed before the judge when sentencing. As noted by McCombe LJ in Sula, these cases are very fact specific but in the absence of specific Sentencing Guidelines the court always seeks to achieve a degree of consistency in its approach to sentencing on similar cases. The court considered each of the factors identified in Yates. Firstly, the judge was entitled to find that the index offence in respect of count two was serious and substantial. The parties agreed that the section 18 grievous bodily harm offence with intent was a category 2 offence under the relevant Sentencing Guidelines, giving a starting point of six years’ imprisonment and a range of five to nine years. There were two factors indicating higher culpability: premeditation and the use of a weapon. Mr Solomons accepted that there were statutory aggravating factors including the time and location of the offence in a public place in front of others. Therefore there must have been a realistic prospect that the index offence would have attracted a sentence above the starting point. Secondly, the court accepted that the nature and extent of the assistance provided by Mr Solomons to Mr Gardner as set out in the indictment was not likely to be particularly effective, but the intention was to conceal evidence of the events leading up to the attack on Mr Ward. The concealment was not of significant duration but as the judge correctly observed that was because Miss Mead found the CCTV unit; Mr Solomons did not hand it in. In respect of the third factor, the court accepted that the interests of justice were not significantly affected by Mr Solomons’ offending. Taking into account all of those factors, the court judged that the sentence of three years’ imprisonment prior to reduction for the guilty plea was out of line with the other cases and was manifestly excessive. The court considered that a sentence of two years would be appropriate, reduced to sixteen months following credit for the guilty plea.
Turning to the suspended sentence issue, although this was not advanced as a separate ground, the court considered it. The judge had expressly considered and rejected the necessity for a pre-sentence report. The court was of the view that generally where it is arguable that sentences might fall within the range of custodial sentence that could be suspended it is advisable to obtain a pre-sentence report. However, the failure to obtain a pre-sentence report does not invalidate the sentence. The court judged that the judge was entitled to conclude that the seriousness of the offending demanded an immediate custodial sentence, particularly given Mr Solomons’ relevant previous conviction for conduct intended to pervert the course of justice for which he had received a suspended sentence.
In short, the appeal was allowed, the sentence on count one was reduced to one month’s imprisonment concurrent, the sentence on count two was reduced to sixteen months’ imprisonment, and the total sentence became sixteen months’ imprisonment.
The appellant pleaded guilty to assisting an offender by taping over number plates to impede the prosecution of a friend who had committed criminal damage, and also by concealing CCTV when the same friend went on to commit an offence of GBH with intent. He had a conviction in 2009 for perverting the course of justice and s20 for which he successfully completed a suspended sentence. Six months imprisonment was imposed for the first offence with 2 years to run consecutively for the second.
The appeal was allowed, the court set aside the sentence of six months and substituted a sentence of one month to run concurrently with the sentence on the second count; on that count the term of two years was set aside and substituted with a sentence of sixteen months.