Case No: 201502004 A1
Neutral Citation Number: [2015] EWCA Crim 1306
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
HIS HONOUR JUDGE CLARKE QC
T20147423
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30 July 2015

Before:

LORD JUSTICE McCOMBE
MR JUSTICE JEREMY BAKER
and
MR JUSTICE LEWIS
- - - - - - - - - - - - - - - - - - - - -
Between:

	Michael Patrick O’Leary	Appellant	
	- and -		
	Regina	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Ross Cohen for the Appellant

Hearing date: 21 July 2015
- - - - - - - - - - - - - - - - - - - -

Judgment
Mr Justice Jeremy Baker: 
1.	Michael O’Leary is 36 years of age. On 16th January 2015 at a plea and case management hearing at Blackfriars Crown Court, he pleaded not guilty to one count of attempted murder and two counts of wounding with intent, but pleaded guilty to alternative offences of assault with intent to rob at count 3, and unlawful wounding at counts 5 and 6, contrary to section 20 of the Offences Against the Person Act 1861. He was subsequently tried and acquitted of the more serious offences, and on 31st March 2015 he was sentenced by the trial judge to a total of 8 years’ imprisonment, comprising 5 years on count 3, 3 years concurrent on count 6, and 3 years consecutive on count 5. 
2.	He now appeals against sentence with the permission of the single judge.
3.	All three offences took place on the evening of 23rd September 2014. The victim of the first offences at counts 3 and 6 was Iftikher Ahmed, who worked at a convenience store in Islington. The appellant, who had previously armed himself with a kitchen knife, entered the store, brandished the knife and demanded that the till be opened. Mr Ahmed sought to disarm the appellant by grabbing hold of the knife, and a struggle ensued in the course of which Mr Ahmed suffered wounds to his left hand, and a superficial laceration and abrasions to his head. At the conclusion of the struggle, the appellant dropped the knife, ran out of the shop and made good his escape. The appellant returned to his home, where he collected two more knives, before proceeding to another convenience store in the area, where Samsul Islam was working. The appellant approached Mr Islam, brandishing one of the knives and told Mr Islam that he wanted to kill a Muslim. Mr Islam sought to disarm the appellant by grabbing hold of the knife, and a struggle ensued, causing Mr Islam to fall to the floor, whereupon the appellant repeatedly punched him to the head. At the conclusion of the struggle, the appellant made good his escape, but Mr Islam was left with a deep wound to his right hand. This latter incident was the subject matter of count 5. Both of these incidents were captured on CCTV, and the next day the police attended at the appellant’s home and arrested him. At the police station, whilst being booked in, the appellant said that he didn’t want to be processed by a Muslim, and thereafter made no comment in interview, save for submitting a short prepared statement in which he denied that he had said he wanted to kill a Muslim; a position which he maintained at trial. 
4.	As a result of these incidents, the victims have not only suffered from the effects of the physical injuries inflicted upon them, but both of them have suffered psychological harm. Mr Ahmed has not worked since the incidents took place, and Mr Islam has been caused considerable distress and anxiety due to the racial nature of the threat which the appellant made to him. 
5.	The appellant’s criminal antecedents disclose that he has been convicted of assault occasioning actual bodily harm on 3 occasions between 1997 and 2013. During this period he has also been convicted of common assaults, racially threatening behaviour, harassment and possessing an offensive weapon. 
6.	In sentencing the appellant the trial judge indicated that there were a number of aggravating factors in relation to these offences. Both of the victims were in vulnerable positions, being in sole charge of convenience stores at night time. The offences had been planned, and not only had physical injury been caused to both of the victims, but they had suffered significant and lasting psychological harm, in the latter case due to the racial nature of the threat to Mr Islam. The appellant also had a history of violent offences, albeit the judge accepted that the cause of most of these was the appellant’s addiction to drugs, which he was now beginning to address. In relation to count 3, the judge had regard to the relevant robbery guidelines, and assessed this as a level 2 offence, with a starting point of 4 years’ custody, and a range of between 2 – 7 years. He determined the pre-plea starting point to be 6 years 8 months, and thereafter deducted 25% which reflected a reduced discount for plea because of the overwhelming nature of the evidence from the CCTV footage of the incident. In relation to the unlawful wounding offences, the judge had regard to the relevant sentencing guidelines and assessed the offences as falling within category 1, with a starting point of 3 years’ custody, and a range of between 2 ½ - 4 years. He determined the pre-plea starting point to be 4 years’ custody, and, for the same reason, made a similar discount for plea.
7.	On behalf of the appellant Mr Cohen makes no complaint about the pre-plea starting point in relation to the assault with intent to rob. However he seeks to argue, firstly that the judge should have provided a 33% discount for the appellant’s pleas of guilty. Secondly that the unlawful wounding upon Mr Islam should have been assessed as being a category 2 offence within the relevant sentencing guidelines. Thirdly, that in the absence of the appellant having been convicted of an offence of racially aggravated unlawful wounding, contrary to section 29(1)(a) of the Crime and Disorder Act 1998, the judge was not entitled to treat racial motivation as a factor which increased the seriousness of the unlawful wounding offence at count 5. Fourthly, that, having regard to totality, the overall sentence in this case was manifestly excessive.
8.	The original application for permission to appeal against sentence included only the first three of these grounds, and the single judge only granted permission to appeal in relation to the third of them. However, Mr Cohen who appears on behalf of the appellant, not only seeks to renew the application for permission to appeal in relation to the first two of these grounds, but seeks permission to appeal on the fourth ground. 
9.	At the hearing of the appeal we announced that the appeal would be dismissed, and that the renewed applications in relation to the first two grounds and the application for permission to appeal in relation to the fourth ground would be refused. We announced that our reasons would be delivered later, and these are those reasons. 
10.	As is evident from the relevant sentencing guidelines in relation to the reduction in sentence for a guilty plea, although a plea of guilty at the first reasonable opportunity will normally entitle an accused to a 33% reduction, there may be factors which entitle the sentencing judge to withhold some part of that discount; one of which is where the prosecution case is overwhelming. In such a case the recommended reduction is 20%. In the present case it is apparent, as the judge found, that in reality the appellant had no realistic prospect of securing an acquittal by the jury, as both of these incidents had been captured on CCTV; such that the prosecution case was overwhelming. In these circumstances the judge would have been entitled to have provided a discount of only 20%; instead he provided a more generous discount of 25%. Accordingly, we refuse the renewed application for permission to appeal on this ground. 
11.	In so far as the offence of unlawful wounding relating to Mr Islam is concerned, this was in our judgement clearly a category 1 offence within the relevant sentencing guidelines; greater harm being indicated by a number of factors, including the vulnerable circumstances in which the victim found himself, alone at night in charge of a convenience store, and the extent of the physical and psychological harm which he suffered as a result of the attack upon him; higher culpability being indicated by a number of factors, including the significant degree of premeditation, the appellant having gone home with the specific purpose of collecting two more knives, and the use of one of those knives to attack Mr Islam. However, over and above these factors, there were further ones which increased the seriousness of the offence and the appellant’s position, including the intoxicated condition of the appellant, and the history of his previous convictions for violence and other related offences. In these circumstances we consider that the judge was entitled to select a pre-plea starting point towards the upper end of the range within the relevant sentencing guidelines, and again we refuse the renewed application for permission to appeal on this ground. 
12.	We have considered whether in addition to these factors, and in the absence of a conviction for racially aggravated unlawful wounding, the judge was entitled to take into account, as a further factor increasing the seriousness of the offence, that it was racially motivated. 
13.	We were referred to a number of authorities by Mr Cohen. In particular he relied upon R v Lawrence (1983) 5 Cr. App. R. (S) 220, where the accused had been charged with and pleaded guilty to an offence of possession of a firearm within 5 years of leaving prison, but where the sentencing judge appears to have sentenced him upon the basis that he was in fact guilty of an offence of possession of the firearm with intent to endanger life, in reliance upon a number of threats which he had issued at the material time. In that case, Griffiths LJ said that,
“The difficulty with that approach is that although there was ample evidence to have supported a count in the indictment accusing him of having possession of the shotgun with intent to endanger life, that was not the offence with which he was charged and was not the offence to which he pleaded guilty. A man is entitled to be sentenced for the offence to which he pleads guilty, not to another offence which might as well have been laid against him.”
This approach was followed in R v O’Prey (1999) 2 Cr. App. R. (S) 83, where it was held that the sentencing judge should not have sentenced an accused on the basis that he was guilty of an offence of dangerous driving, because of the manner of his driving, when he had only been charged with and pleaded guilty to offences of driving whilst disqualified, perverting the course of justice and possession of cannabis.
14.	Mr Cohen also relied upon R v McGillivray [2005] EWCA Crim 604 and R v Kentsch [2005] Crim 2851, in which the respective accused had pleaded guilty to offences of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, in circumstances where the racially aggravated form of the offence, contrary to section 29 of the Crime and Disorder Act 1998 had either been the subject of a not guilty verdict or where the indictment had been amended so as to delete it.
15.	However in R v O’Callaghan [2005] EWCA Crim 317, Gross J, as he then was, dealt with a case in which the accused had stood trial and been convicted of an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. Racial aggravation had not been an issue at trial, and there was no evidence that the assault had been racially aggravated, beyond the fact that the victim was of Asian heritage. Despite this and, without holding a Newton type hearing or any prior warning to those representing the accused, the trial judge sentenced him upon the basis that the assault had been racially aggravated, and increased his sentence accordingly. This court held that the judge had not been entitled to increase the sentence, because in those circumstances he had not been entitled to conclude that the sentence was racially aggravated for the purposes of the sentencing exercise. In particular it was noted that not only had he not been convicted of racially aggravated assault, but there was no evidence at trial of racial aggravation, no Newton type hearing had taken place and the appellant had not been given prior notice that the point was in issue. However, this court did not, in that case, consider that a trial judge would necessarily be precluded from determining the issue of whether an offence was racially aggravated as part of the sentencing process, even though it had not arisen at trial, and referred to the mandatory wording of section 153 of the Powers of the Criminal Courts (Sentencing) Act 2000. This is now section 145 of the Criminal Justice Act 2003 and provides as follows:
“Increase in sentences for racial or religious aggravation
145.– (1) This section applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated assaults, criminal damage, public order offences and harassment etc).
           (2) if the offence was racially or religiously aggravated, the court – 
(a) must treat that fact as an aggravating factor, and 
(b) must state in open court that the offence was so aggravated. 
(3) Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or religiously aggravated”) applies for the purposes of this section as it applies for the purposes of sections 29 to 32 of that Act.”
16.	Moreover, in R v Khan [2009] EWCA Crim 389 it was held that a trial judge had been entitled to treat a verbal threat to kill someone as an aggravating factor following a conviction for perverting the course of justice, not withstanding that there was no separate offence, on the basis that it was a matter raised during the course of the trial and was not inconsistent with the verdict of the jury. In the course of the court’s judgment, Hedley J. said,
“Nothing in this judgment is intended to cast doubt upon the general proposition that no-one should be sentenced for criminal conduct in respect of which he has neither accepted it not been convicted. Moreover nothing in this judgment is intended to give comfort to the view that such conduct is capable of being established in a Newton hearing. Nevertheless where the conduct is relevant to a criminal charge being considered by a jury and where such conduct has been the subject of specific scrutiny in a trial then unless reliance on that conduct is inconsistent with a verdict, a judge should be able to take that conduct into account on sentence provided he is satisfied that it has been established to his satisfaction to the criminal standard. Clearly treating someone as having an intention to supply drugs is inconsistent with a conviction for simple possession or treating someone as intending to cause really serious bodily harm is inconsistent with a verdict for inflicting the same.”
17.	In the present case, unlike the situations in R v McGillivray and R v Kentsch, the appellant had neither been acquitted of an offence contrary to section 29 of the Crime and Disorder Act 1998, nor had the indictment been amended so as to delete a count charging such an offence. Moreover, unlike the situation in both R v Lawrence and R v O’Prey, the appellant was dealt with following a trial in which not only had the appellant had an opportunity of challenging the evidence relating to the alleged racial aggravation, but the judge had an opportunity of making a finding about it. In these circumstances, we consider that the situation in the present case is more akin to that which was considered in R v Khan. Moreover, unlike the situation in R v O’Callaghan and R v Docherty [2014] EWCA Crim 1404, there was in the present case clear evidence upon which the trial judge had been entitled to conclude to the criminal standard that the assault was racially aggravated. In these circumstances we are satisfied that the judge was entitled to treat this matter as a factor which increased the seriousness of the offence, and we dismiss this ground of appeal.
18.	Our conclusion upon this issue should not be taken as any endorsement for the view that the prosecution are thereby relieved of their duty to consider the indictment with care. On the contrary, in the majority of cases where the evidence supports an aggravated form of assault, then it should be placed upon the indictment. However we can understand in the particular circumstances of the present case, where another set of alternative offences had already been placed on the indictment for the jury to consider, adding further alternatives under section 29 of the Crime and Disorder Act 1998 would have had the effect of overloading the indictment and overly complicating the jury’s task. 
19.	Finally we have considered whether having regard to totality the overall sentence was manifestly excessive. We do not consider it is and refuse permission to appeal on this ground. Overall this was an extremely serious series of offences, which involved the appellant repeatedly arming himself with knives which he was prepared to brandish towards vulnerable victims. At least one of the offences was racially aggravated and the victims have suffered lasting psychological harm. We consider that the circumstances of these offences merited the overall sentence passed in this case, and accordingly dismiss the appeal.