IN THE COURT OF APPEAL | Course Paper

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

In the matter of an Appeal from the Redgrove Crown Court

BETWEEN

Wright

Appellant

v

REGINA

Respondent

SKELETON ARGUMENT OF THE APPELLANT

The sentence

The seriousness of the offence is assessed by considering The Sentencing Council

Guidelines. In order to calculate and determine the appropriate sentence the culpability of

the offender must be considered, along with the harm caused by the offending. This

aforementioned assessment process of harm and culpability should take no account of

plea or previous convictions.

R v Hempsworth [2020] EWCA Crim 730 at paragraph 5 states:

‘The view of a judge ‑ particularly an experienced judge ‑ who has presided over a trial, as

to the seriousness of the case, is something we respect. The trial judge is best placed to

have a greater feel for a case than an appellate court. However, if it can be shown that the

judge has miscategorised the case, it is, of course, the duty of this court to intervene’.

The trial judge miscategorised the case and it is, of course, the duty of this court to

intervene to correct this.

The Court of Appeal has the power to have regard to material not existing at the time of

sentence. Under section 11(3) of the Criminal Appeal Act 1968, it states that the Court of

Appeal can quash and substitute a sentence in its place, if they consider the appellant

“should” be sentenced differently. Lord Chief Justice’s judgment in this Court of Appeal in

the case of R v Manning [2020] EWCA Crim 592 was not in existence at the time of the

Appellants sentencing.

Relying on the recent judgment of this court in R v Manning [2020] EWCA Crim 592, it is

submitted that although the sentence was passed prior to the COVID‑19 lockdown, the

restrictions resulting from that pandemic have had serious adverse effects on the

Appellant, with (e.g.) the postponement of home leave and family visits.

Manning at paragraph 41 reads:

i. “We would mention one other factor of relevance. We are hearing this

Reference at the end of April 2020, when the nation remains in lock‑down as a

result of the Covid‑19 emergency. The impact of that emergency on prisons is

well‑known. We are being invited in this Reference to order a man to prison nine

weeks after he was given a suspended sentence, when he has complied with

his curfew and has engaged successfully with the Probation Service. The

current conditions in prisons represent a factor which can properly be taken into

account in deciding whether to suspend a sentence. In accordance with

established principles, any court will take into account the likely impact of a

custodial sentence upon an offender and, where appropriate, upon others as

well. Judges and magistrates can, therefore, and in our judgment should, keep

in mind that the impact of a custodial sentence is likely to be heavier during the

current emergency than it would otherwise be. Those in custody are, for

example, confined to their cells for much longer periods than would otherwise be

the case – currently, 23 hours a day. They are unable to receive visits. Both they

and their families are likely to be anxious about the risk of the transmission of

Covid‑19.

ii. 42. Applying ordinary principles, where a court is satisfied that a custodial

sentence must be imposed, the likely impact of that sentence continues to be

relevant to the further decisions as to its necessary length and whether it can be

suspended.”

R v Jones [2020] EWCA Crim 764 further supports the argument of the sentence

reduction during the COVID-19 climate. In this case the Court of Appeal reduced the 8

month prison sentence to 6 months. At paragraph 16 of the judgement it states:

‘… the sentence was manifestly excessive because: the starting point was too high and

that certain mitigating features such as the fact that the applicant had served a custodial

sentence in the meantime (for separate offending committed during the time of these

offences) and delay were not considered adequately in sentence. It was wrong to place

this offending at the top of the Category 2 range…. ’

Paragraph 17 of the judgement: ‘We turn to the second argument which concerns the impact

of the pandemic upon the conditions under which the applicant is serving his sentence. We

are informed by counsel that the applicant spends the entirety of each day, save for 30

minutes, locked in his cell and that he is unable to have any social visits.’

Since the Appellants sentence was imposed in February a number of cases have been

determined by the Court of Appeal, involving sentence reductions: R v Fraser [2020]

EWCA Crim 1014 where an 18 month prison sentence for an offence of possessing an

offensive weapon, a machete, contrary to section 1(1) of the Prevention of Crime Act 1953

was reduced to 14 months; in R v Smith [2020] EWCA Crim 1014 a 9 months sentence

suspended for two years in a criminal offence contrary to section 42 of the Armed Forces

Act 2006, attempted sexual communication with a child contrary to section 1(1) of the

Criminal Attempts Act 1981 and in R v Randhawa [2020] EWCA Crim 1071 the

Appellant was convicted of 16 counts of fraud and sentenced to 28 months reduced to 24

months suspended for two years.

In accordance with the principle in R v Saw [2009] 2 Cr. App. R. (S.) 54 The Lord Chief

Justice also emphasized at paragraph 24 of the judgement:

‘’…the culpability of the offender is not diminished merely because it is a common

characteristic of many offences of burglary that the offender has previous convictions…’

At paragraph 25 of R v Saw [2009] The Lord Chief Justice refers to the record of an offender

being of more significance in the case of domestic burglary than in a case of some other

crime but making it clear that what is required is,“…not compartmentalisation, but

evaluation…”.

Analogously, it is advanced that the Appellant’s aspects of high level of harm do not give

complete credence to strip him of displaying his low level of culpability and meriting a

sentence within category 2 for the offence of Burglary under s.9 of the Theft Act 1968.

The Sentencing council guidance surrounding in R v Manning [2020] EWCA Crim 592

goes as far to suggest that the court should consider whether increased weight should be

given to mitigating factors, and should keep in mind that the impact of immediate

imprisonment.

Mitigation

There is no general definition of where the custody threshold lies but it is conceded the

custody threshold has crossed in this case for the Appellant. We refer to the imposition of

Community and Custodial Sentences Definitive Guidelines in considering this

submission that the Appellant has reasonable grounds to have his sentence categorised as

a category 2 case and have his sentence suspended. The factors to be weighed in deciding

whether it is possible to suspend the sentence are set out on page 8 of the guidelines.

The factors that suggest it would not be appropriate to suspend a custodial sentence include

the fact that the offender continues to present a risk to the public, that appropriate

punishment can only be achieved by immediate custody and that there is a history of poor

compliance with court orders which we rebut. We re-submit on behalf of the appellant that

there be a change in the level of categorisation and that it is appropriate to suspend a

custodial sentence, there is a realistic prospect of rehabilitation supported by personal

mitigation.

We advance that the appellant be granted the prospect under section 142 (1) of The

Criminal Justice Act 2003 to reform and rehabilitate with the imposition of a suspended

sentence.

The Court of Appeal has provided that in the case of a standard domestic burglary which

additionally displays any one of the high-level aggravating features, the starting point should

be a custodial sentence of 18 months if the offence has been committed by a first-time

domestic burglar: R v McInerney; R v Keating [2003] 1 All ER 1089; R v Delfrate – [2005]

EWCA Crim 1174 Burglary committed on bail for assault, first time offence. 24 months

reduced to 18 months; R v Hussain [2009] EWCA Crim 1936 18 months custodial sentence

for burglary and criminal damage, for a first time burglary. Previous convictions for shop-

lifting. there were aggravating factors, middle of the night when the occupants were asleep

in their bed.

He had committed the burglary only three weeks after being made subject to a community

order.

Reduced sentence- R v Williams [2018] EWCA Crim 2155

The Recorder determined that this case fell on the cusp of category 1 and category 2. A

case falling within category 1 has a starting point of three years’ custody and a range of two

to six years; and a case falling within category 2 has a starting point of one year’s custody

and a range of a high level community order and two years’ custody.

There is no general definition of where the custody threshold lies but It is conceded the

custody threshold has crossed. We refer to the imposition of Community and Custodial

Sentences Definitive Guideline in considering this submission. The factors to be weighed in

deciding whether it is possible to suspend the sentence are set out on page 8 of the

guidelines.

The circumstances of the individual offence and the factors assessed by offence-specific

guidelines will determine whether an offence is so serious that neither a fine alone nor a

community sentence can be justified. Where no offence specific guideline is available to