Tag Archives: Sentence

Ian Watkins back in Court on 23rd July for appeal against sentence

Photo from the Independent

Photo from the Independent

Introduction

We have covered the case of Lost Prophets singer Ian Watkins previously on the blog. When he was sentenced, we said that it was a very, very high sentence and permission to appeal was likely to be granted. On that basis, it wasn’t a surprise when The Independent reported on 16th July 2014 that he has been given permission to appeal.

The full appeal hearing is next Wednesday, 23rd July 2014.

Here’s some of our previous pieces on the case:

 

What will happen?

The hearing will be a full appeal against sentence we understand. The Judges will have the papers, so anyone sitting in Court to watch it may well be a bit confused as they won’t have all that information.

It probably won’t actually last that long – maybe half an hour. A cynic would say that the Judges will have come to their conclusion, and even written their judgment, in advance.

There has been a move recently to have more hearings out of London, and to create a legal hub in Cardiff to represent Wales. There is a ‘Civil and Family Justice Centre’ there that can hear many cases.

Because of the need for a secure dock for Mr Watkins, this appeal will actually be heard in the Crown Court at Cardiff, even though it will be sitting for the day as the Court of Appeal.

As to the outcome? Difficult to say. Having to serve at least 19 years is one of the highest sentences ever handed out for this sort of offending. Having said that, this was a particularly horrific set of offences, and an extremely lengthy sentence was in order.

I imagine that there will be two strands to the appeal. Firstly, that an extended sentenced was not necessary. This is unlikely to get anywhere due to the nature of the offending.

Where Mr Watkins is on stronger ground is the argument that the sentence was just too long. When an extended sentence is passed, the usual need in sexual offences sentencing for public safety doesn’t apply. In light of that, I would imagine a total sentence of 30 years, with 24 years plus an extension of 6 years would have been more appropriate.

But, we’ll certainly have a look at this next week.

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Concurrent or consecutive sentences? – Sentencing for multiple offences

 

Introduction

When a court has to sentence for multiple offences, the question arises as to whether the sentences should be made concurrent or consecutive to one another.

A concurrent sentence is one which is served at the same time as another, for example, B receives 2 years for burglary and 4 years for arson, concurrent. The total sentence is 4 years, because they begin at the same time.

A consecutive sentence is one which is served after another, for example, B receives 2 years for burglary and 4 years for arson, consecutive. The total sentence is 6 years, as the two sentences are added together, and one is served at the conclusion of the other.

Concurrent or consecutive – how do you decide?

The principles of totality are explained in the Totality Guideline produced by the Sentencing Council. There is no hard and fast rule as to whether sentences should be concurrent (i.e. served at the same time) or consecutive (i.e. served one after the other), and the courts are concerned primarily with the overall total – the pertinent question is whether the overall sentence is proportionate to the offending.

Concurrent sentences are generally appropriate where the offences arise out of the same incident, say for example, where a burglar breaks into a house and steals a wallet (burglary) and on his way out steals a gnome from the garden (theft). Concurrent sentences are also generally appropriate where there is a series of offences of a similar kind, especially against the same victim.

Consecutive sentences are generally appropriate where a) the offences arise out of separate and unrelated incidents and b) the offences are linked but concurrent sentences will not adequately reflect the overall criminality.

Totality

Intertwined with the issue of concurrent and consecutive sentences is that of totality. Where a court imposes consecutive sentences, say, 2 years, 4 years and 18 months (total 7½ years), the court must ask itself whether the total sentence is proportionate to the offending. For example, twenty burglaries each worth 2 years could not reasonably result in a 40-year sentence. The sentence has to reflect what the defendant has done, and how that relates to other types of offending – would it be fair to lock someone up for longer than a murder, just because they had committed five offences each worth 5 years?

Frequently, courts will reduce either the overall term, having stated the individual sentence on each individual count.

For example, 2 years + 4 years + 18 months = 7 years. Reduce 7 years by 2 years to reflect that the 7 years is too much for the overall offending.

Alternatively, the court may reduce the period of imprisonment on each count to achieve the desired result. For example, if the proper sentence on each count is 2 years + 4 years + 18 months = 7 years, but the appropriate sentence, having regard to totality is 5 years, the court may state what the sentence would be, but for totality, and then reduce 2 years to 18 months, 4 years to 4 years and 18 months to 12 months, to achieve the desired result.

Sexual offences cases

Very topical at the moment is the issue of the proper sentence to impose on defendants in sexual offences cases.

In line with the principles listed above, defendants are likely to receive consecutive sentences for offences against individual victims. Max Clifford is an example (although there are some problems with the sentence imposed upon him).

There is sure to be further judgments by the Court of Appeal in relation to this issue, so watch this space.

Danny Nightingale retrial sentence – 2 years imprisonment (suspended) – updated

Introduction

Sgt Danny Nightingale attended his Court Martial in Burford on 25th July 2013 to be sentenced for possession of a firearm and ammunition. Coverage of the conviction (and some of the issues that may have arisen at the sentencing here) is here, and we have full background to the Nightingale case here.

Judge Advocate General HHJ Jeff Blackett sentenced him to 2 years imprisonment (called military detention), but suspended for 12 months. His original sentence was 18 months detention (immediate), but this was reduced to 12 months suspended. Although Sgt Nightingale walks away from Court a free man today, this is an increase on his original sentence.

This is a very high profile case with a lot of media interest. When the dust has settled (and the sentencing remarks available) we will return to this and update the post. One question that had been debated is whether a higher sentence can be imposed and it seems that the answer to that was ‘yes’.

Why was the sentence passed?

Unusually, the sentence here can be criticised in two ways. There are reasons why it is too long, and reasons why it is too short. Sounds odd? The starting point is the sentencing remarks.

Why the sentence is too short

The Judge indicates that the starting point is the mandatory minimum – 5 years. A sentence lower than that can only be passed if there are ‘exceptional circumstances’. As we have noted before, this is a very narrow test – it will only apply in a very small number of cases.

Four exceptional circumstances were identified in this case by the Judge :

1. You were an outstanding Senior NCO who has served with distinction in the elite regiment of the British Army.  You have served on a number of operational deployments where your conduct has been exceptional;

2. Not only have you done your duty, but you have also done more to improve the medical care of those who receive traumatic injury by developing the Nightingale dressing;

3. You suffered a brain injury in 2009 which has had some effect upon you – while the court has rejected your assertions of confabulation about the pistol and ammunition we accept that you do have some mental impairment which may have affected the way you failed to decommission the pistol or return the ammunition;

4. You had no criminal intention – you found yourself in this position because of poor administrative practices and possibly forgetfulness. 

First off, it should be noted that it is (at the very least) questionable whether these circumstances, either individually or taken together, can amount in law to ‘exceptional circumstances (see the list in the case of Downes referred to above).

To the extent that Sgt Nightingale got a large reduction from 5 years to 18 months first time round he was very lucky. Of course, this time around he did not have the ‘credit’ for a plea of guilty as he had a trial and the Court were sure that he was not telling the truth.

Looking at all that, the ‘appropriate’ sentence (the one that one would expect) is one of at least 5 years. To that extent, 2 years suspended is a ‘touch’.

Why the sentence is too long

However, as we pointed out, the usual rule is that one cannot get a higher sentence after a re-trial than on an original trial. The Judge got round this in Sgt Nighingale’s case by referring to the case of Skanes [2006] EWCA Crim 2309 (not available on-line unfortunately). This case (not widely known) did throw doubt on whether this usual rule applied in a case where someone pleaded guilty. Mr Skanes was charged with rape and other offences. He pleaded guilty to the rape, got 7 years, and the remaining charges were not proceeded with.

He then appealed on the basis he hadn’t been advised properly, he succeeded, and was tried on the rape and other offences. He was found guilty of them all and got ten years. The Court of Appeal refused to reduce it. They didn’t quite engage with all the issues, making the sentences for the other offences 3 years consecutive to the 7 years for the rape.

Whether this applies to Sgt Nightingale is questionable. It seems to me that the Court Martial would have been bound by the actual sentence imposed first time around by the Court of Appeal. For that reason, as 2 years is longer than the original sentence, and the sentence as varied by the Court of Appeal, it is too long.

In fairness, it seems that there is a separate ruling in relation to this that will be be released in due course. It may be that that makes the position clearer.

Conclusion

All in all, this seems a sensible and fair way of dealing with the case. It marks the seriousness of someone having a deadly firearm with lethal ammunition, but recognises the mitigating factors. Sgt Nightingale can, for reasons we have already said, consider himself fortunate that he didn’t get the 5 year minimum, but hopefully this will be the end to a long and sorry saga.

Father jailed for manslaughter of 3 month-old-child

Facts

Stephen Coukham, of Truro, Cornwall, aged 21, denied murder but admitted manslaughter; he killed his 3-month-old son, Tyrone, by shaking or throwing him. He was aged 18 at the time.

Coukham gave conflicting accounts of when Tyrone had been ill and initially claimed that the child had slipped through his hands.

The Guardian reported: A postmortem found that the baby suffered a “devastating, unsurvivable head injury”. Experts suggested shaking was the most likely cause of death and said there were other internal injuries that may have been caused before the day Tyrone died.

A health worker who visited the family said she had witnessed Coukham “rough handling” the baby, pulling him up by his arms as a two-week-old. But GPs and health professionals said they had had no cause for concern over the baby’s treatment.

Judge’s comments

Mrs Justice Sharp told him: “The precise sequence of events that led to Tyrone’s death will never be known. But you lost your temper because he was crying or wouldn’t stop crying.

“Then in a fit of temper you shook him hard, or threw him down on a soft surface, actions that were likely to cause him harm.”

The judge said she was confident that until the attack in July 2010 Coukham had been a caring parent, and that he had not intended to cause serious harm to his son.

“This crime is, in a real sense, a tragedy for all concerned. For Tyrone, whose life was cut short so young, for Kerry and Tyrone’s wider family, but also for you because you will have to live with the knowledge of what you did for the rest of your life,” she said.

Sentence and comment

Mrs Justice Sharp sentenced Coukham to 3 years and 8 months. As usual, there are no sentencing remarks available.

We know that Coukham pleaded. On the basis that he was given full credit for his plea, the Judge started at around 5½ years. Without a detailed factual background, it is difficult to accurately assess the sentence, however, we are able to ascertain the following:

  • There was an absence of intention to cause Tyrone serious harm,
  • Tyrone was not mistreated or abused,
  • Coukham’s action was (most likely) out of frustration at Tyrone continually crying,

In light of those features, his culpability is somewhat reduced. In mitigation, there is the emotional trauma that the incident will have caused Coukham, his young age and the (probable) irreparable damage it will have done to his relationship with his partner. There is also the issue of good character, which we have no information on.

Sentences for manslaughter vary wildly and for causing the death of a child (charged under Domestic Violence Crime and Victim’s Act 2004 s 5) recent sentences have ranged from 2 years up to 9 years. There is a clear link between the offence of causing the death of a child and manslaughter and the courts treat case law in one as instructive in the other.

R v Burridge 2011 EWCA Crim 2847 saw a father convicted of murder (substituted for manslaughter on appeal) where his 8 week old son had stopped breathing, suffered bleeding on the brain and rib injuries, and subsequently died. It was held that the injuries were caused by the father in a temper and under stress. He received 10 years.

In absence of further detail, it is difficult to go beyond saying that 3 years 8 months is certainly not outside the range of sentences that could be expected for the offence – in fact some may consider it lenient. Of course it is not possible to accurately assess the sentence without the fullest information.

17 year minimum term for beating her 7-year-old son to death – is it long enough?

Sara Ege court case

Sara Ege, aged 33, was found guilty of murder and perverting the course of justice.

Facts

The factual background is quite complex; news reports from various different sources give a good understanding of the course of events (Guardian, BBC, Huffington Post)

In brief, Ege had beaten her son, Yaseen, to death. Over a prolonged period, Yaseen was beaten on a regular basis after failing in Koran studies. Teachers at his school noticed his injuries and that he was having to write with his other hand as it was too painful to write with his usual hand. Ege moved Yaseen to another school. Yaseen died in July 2010 after months of beatings.

Ege then attempted to burn Yaseem’s body in an attempt, as the Judge found, to evade liability for beating him to death.

Sara Ege

She told police she was “getting angry too much”, adding: “I would shout at Yaseen all the time. I was getting very wild and I hit Yaseen with a stick on his back like a dog.”

She forced him to drink milk; and when she went back to him he was shaking and shivering. She did not seek medical help and the boy died. The woman then used barbecue lighting gel to set fire to his body.

The Judge found that she was a good mother in some areas and had suffered bouts of depression due to a number of factors.

It was also accepted that Sara Ege had been the victim of prolonged domestic violence.

Judge’s remarks

From the Huffington Post:

“There is a further aggravating feature and that is that you attempted to burn Yaseen’s body. There can be no doubt that you set fire to his body in an attempt to evade the consequences of what you had done.”

He added: “What was your motive for acting as you did? I am satisfied that, on the day of his death, Yaseen was kept home from school so that he could dedicate himself to his (Koran) studies.

“On that day Yaseen must have failed in some way because I am satisfied that it was that failure which was the trigger for the beating.

The sentence

The Judge imposed the mandatory life sentence with a minimum term of 17 years.

An explanation of the starting points for murder can be seen here.

There has been a discussion on Twitter as to whether the starting point ought to have been 30 years as a result of the perceived ‘religious motivation’. As the sentencing remarks are unavailable, and the press reports have (as usual) missed out numerous important elements from the sentencing hearing, we are left to figure it out for ourselves.

One view is that, whether the starting point is 30 years or 15 years, the result should be the same: if it is 30 years, it will be reduced to take account of the mitigation such as Ege’s depression. If it is 15 years, it will be increased to take account of the prolonged cruelty inflicted to Yaseem. Many are of the opinion that the starting points are merely political devices to enable the Government to look tough on crime.

My view is that it would be difficult to justify a 30 year starting point on the basis that it was a religiously motivated murder. As the factual background appears to be complex (although we don’t seem to have all of the facts) a far easier route to determining sentence would be to start at 15 years and add the aggravating factors on, taking account of the finding that the murder was committed due to Yaseem’s ‘failing in his studies of the Koran’.

17 years does appear low when the aggravating features seem numerous; the statutory aggravating factors appear to be: Yaseem was vulnerable because of his age, Sara Ege was in a position of trust as his mother, Yaseem suffered physical (and potentially mental) harm before his death, the attempted concealment of the cause of death. In addition, other aggravating features appear to be the prolonged period of time over which the abuse was inflicted upon Yaseem, the lies told to the police and the

Mitigation seems to be the lack of intention to kill, the mental health issues, the fact she had suffered domestic violence for a prolonged period and lack of premeditation. Further, it would appear that the Judge found that motivation was related to Yaseem’s studies and so in some perverse way, Sara Ege thought she was acting his Yaseem’s best interests.

The 17-year sentence appears to me to be low. However, as is usually the case, there are no sentencing remarks and we only have the news reports to base our assumptions on. On those news reports, I would have expected a sentence in the low 20s, as, in spite of the mitigation, this was an appalling crime with shocking cruelty inflicted on a vulnerable and innocent young child.

Whether or not there will be an Attorney-General’s Reference (prosecution appeal against sentence) remains to be seen.

Youth Rehabilitation Orders

Legislation Criminal Justice and Immigration Act 2008 s 1
Who can get one? Under 18s
Maximum length 3 years (CJIA 2008 Sch 1 para 32(1))
Rehabilitation period 1 year from the date of conviction, or when the order ceases to take effect, whichever is longer (Rehabilitation of Offenders Act 1974 s 5(5)(da))

The basics

A Youth Rehabilitation Order (YRO) can broadly be described as a juvenile equivalent to the Community Order. As the name suggests, the order is geared towards rehabilitation and a correction of behaviour, as opposed to straight punishment. However, the order does contain punitive elements and the court can make up the order in whatever way it deems appropriate, subject to some limitations.
The order must not last longer than 3 years, by which point, all the requirements must have been complied with.

Types of order

There are three:
a) YRO
b) YRO with Intensive Supervision and Surveillance
c) YRO with Fostering

Power to order

When a person aged under 18 is convicted of an offence, the court may imposed a YRO, imposing any one or more of the requirements listed below. (CJIA 2008 s 1(1))

Test

In order for a court to impose a YRO, it must be satisfied that the offence is serious enough. Where it is so satisfied, there remains a discretion whether or not to impose the order. (Youth Sentencing Guideline 2009)

Reports

Before making a YRO, the court must obtain and consider information about the offender’s family circumstances and the likely effect of a YRO on those circumstances. (CJIA 2008 Sch 1 para 28)

The requirements

List of available requirements
Activity (see paragraphs 6 to 8 of Schedule 1)
Supervision (see paragraph 9 of that Schedule)
Unpaid work, in a case where the offender is aged 16 or 17 at the time of the conviction, (see paragraph 10 of that Schedule)
Programme (see paragraph 11 of that Schedule)
Attendance centre (see paragraph 12 of that Schedule)
Prohibited activity (see paragraph 13 of that Schedule)
Curfew (see paragraph 14 of that Schedule)
Exclusion (see paragraph 15 of that Schedule)
Residence (see paragraph 16 of that Schedule)
Local authority residence (see paragraph 17 of that Schedule)
Mental health treatment (see paragraph 20 of that Schedule)
Drug treatment (see paragraph 22 of that Schedule)
Drug testing (see paragraph 23 of that Schedule)
Intoxicating substance treatment (see paragraph 24 of that Schedule)
Education (see paragraph 25 of that Schedule)
(CJIA 2008 s 1(1))

Imposing requirements Requirements are imposed on a case by case basis; that is, the court will assess what is the most appropriate way in which to deal with the offender in light of all the circumstances.

Persistent offenders

Special orders YRO with Intensive Supervision and Surveillance/Fostering A court may only make such an order if:
a) the court is dealing with an offender for an offence which is punishable by imprisonment,
b) the court is of the opinion that the offence(s) are so serious that […] a custodial sentence would have been appropriate, and
c) if the offender was under 15 at the time of conviction, the court is of the opinion that he or she is a persistent offender. (CJIA 2008 s 1(4))
Who is a persistent offender? Parliament left this question ‘to the good sense of the court’ (R v B 2001 1 Cr App R (S) 113 (p 389)
No previous convictions The fact that an offender does not have previous convictions does not preclude him from being categorised as a persistent offender (R v S 2001 1 Cr App R (S) 18 (p 62))
Cautions Cautions can be used when assessing whether an offender is a persistent offender (R v D 2001 1 Cr App R (S) 59 (p 202))

YRO with Fostering

What is it? An order which requires that the offender resides with a local authority foster parent for a period not longer than 12 months, and must not include any period in which the offender is aged 18.
Why is it imposed? These orders are made because the court is of the opinion that the circumstances in which the offender is living contributed to a significant extent to the offending behaviour and that such an order would assist in the offender’s rehabilitation.
Other The order must also include a supervision requirement.
The offender must be legally represented.

YRO with Intensive Supervision and Surveillance

What can it include? The order may include an extended activity requirement (maximum 180 days) and a curfew requirement with an electronic monitoring requirement.
Why is it imposed? Typically, where the court feels that a conventional YRO would not ‘fit the bill’ and that the offender requires a heightened level of supervision in order for it to achieve the desired effect.