Tag Archives: Sentences

Sharon Lyndsay

Lyndsay pleaded to section 18 wounding and theft. Mr Marsden pleaded to ABH.

Facts

Mr Sheehy who suffered from epilepsy, met Lyndsay and her friend, Mr Marsden, whilst out drinking.

Lyndsay claimed that Mr Sheehy had made unwanted sexual advances. In fact, the court heard that Lyndsay had invited Mr Sheehy back to Mr Marsden’s house. In an unprovoked attack, Marsden punched Mr Sheehy in the head, climbed on top of him to ‘ram a pen in his ear’.  Lyndsay, an observer to this point, then took over the assault before stealing £180 from Mr Sheehy’s pockets.

It was reported that Lyndsay stubbed out a lit cigarette on the eyes and face of Mr Sheehy, pulled down his trousers and boxer shorts and then systematically burnt the top of his thighs and groin with a hot iron while he “screamed for mercy”.

Mr Sheehy suffered extreme pain for a number of days and the trauma worsened his epilepsy. He was embarrassed to wear shorts in public due to the marks on his legs.

Previous convictions

Lyndsay had a history of dishonesty offences, including burglary and theft.

Marsden had a ‘lengthy record of violence’ and was subject to a Suspended Sentence Order imposed 3 weeks prior to this offence.

Judge’s remarks

“This was a nasty example of bullying and humiliation of someone who was overwhelmed because he was intoxicated and outnumbered.

It was a sustained and repeated assault of a vulnerable victim.”

Sentence

Marsden received 20 months, with a discount for his plea. In addition, 3 months as he was subject to a suspended sentence.

Lyndsay received 6½ years, with a discount for her plea. In addition, there was a concurrent sentence of 6 months imposed for theft.

Guidelines

Click here to see an explanation of how the guidelines work.

Click here to see a criticism of the guidelines.

Section 18 wounding: It would appear that the Judge placed the offence at the top of Category 2, i.e. Greater harm and lower culpability or Lesser harm and higher culpability. The starting point is 6 years with a range of 5-9 years.

Mitigating factors may have been: a) she demonstrated remorse.

Aggravating factors may have been: a) her previous convictions, b) the victim was vulnerable, c) he was lured back to the house for the purposes of the theft/assault d) leading role in the attack, e) the victim was intoxicated, f) the serious injuries caused to the victim, g) items used to inflict serious injuries, h) the effect the attack had on the victim, i) the humiliation of the victim.

Starting at 6 years, the Judge will have added an uplift for the number of aggravating factors, notably the serious injuries, causing the victim to scream in pain, inflicted with an iron and a cigarette. The aggravating features take the offence toward the top of Category 2, which is 9 years. With a 1/3 discount for the plea, a sentence of 6½ years is very much in the range of sentences available for this type of offence.

Click here to see the wounding guideline (page 3).

ABH: It would appear that the Judge placed Marsden’s offence between Category 1, i.e. Greater harm and higher culpability, and Category 2 i.e. Greater harm and lower culpability or Lesser harm and higher culpability. The Category 1 starting point is 18 months, and Category 2 starting point is 26 weeks, after a trial of a person of good character. Consequently, the Judge would need to make an adjustment to take into account the particular factors of Marsden’s case.

Mitigating factors may be: a) his involvement was a single blow, b) he demonstrated remorse.

Aggravating factors may be: a) his previous convictions, b) the victim was vulnerable, c) he was lured back to the house for the purposes of the theft/assault d) subject to a Suspended Sentence Order imposed 3 weeks prior to the offence, e) the victim was intoxicated, f) the injuries caused by Lyndsay which Marsden did not prevent, g) the serious injuries caused to the victim.

Starting at 6 months, the Judge will have added an uplift to take into account the aggravating factors. Given the serious injuries, the premeditation, the fact that the victim was vulnerable and his record, a sentence of around 12 months is not beyond the expected sentence. With a discount for the plea, 6 months is not excessive.

Concurrent sentences:

In short, the principle of totality requires that a court sentencing for more than one offence must ensure that the eventual sentence reflects all the criminality. Whether the court arrives at the sentence by reducing the individual sentences and adding them together (consecutive sentences) or whether there is a ‘main’ sentence for the most serious offence which reflects the less serious offences (concurrent sentences) the end result should be the same.

Further, concurrent sentences will usually be appropriate where the offences arise out of the same incident. Here, the theft and the ABH/wounding were all part of the same incident in that they were committed at the same time in the same sequence of events.

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Comparing sentences

Is there any consistency in sentencing? Can you compare sentences for different offences?

Is Trenton Oldfield’s offence (the boat race protest) ‘worth’ the same sentence as Barry Thew (wearing the t-shirt mocking the death of two police officers)?

Was Jordan Blackshaw (incitement to get involved in the 2011 riots on Facebook) really 16 times worse than Matthew Woods’ comments (about April Jones)?

The list

Below is a list of sentences which we aim to use in comparison with cases in the news to highlight that there is a serious problem with inconsistency in sentencing.

Mid community – Justin Lee Collins, harassment including verbal and physical bullying of his partner.

High Community – Phillip Laing, outraging public decency by urinating on a cenotaph when on a 7 hour binge

2 months – Matthew Woods, sending a grossly offensive message by a public communications network. He posted ‘sick jokes’ on his Facebook page concerning the missing 3-year-old April Jones. (Sentence discounted by ⅓ for pleading guilty. After a trial, 3 months)

6 months – Trenton Oldfield, causing a public nuisance by swimming in the river Thames, thereby disrupting the Oxford and Cambridge Boat Race.

Barry Thew, wearing a t-shirt mocking the deaths of two female police officers, hours after their murder, in the region in which they were killed. (Actual sentence 4 months with ⅓ discount for pleading guilty)

4 years – Edward Woolard, violent disorder. He threw an empty fire extinguisher from a 7-story building towards a crowd of people during the riots in London against the tuition fee increase. (Sentence discounted by ⅓ for pleading guilty)

6 years – Jordan Blackshaw, incitement to riot. During the 2011 summer riots, posted on Facebook encouragement to burgle, riot and commit criminal damage. No offences occurred as a direct result. (Sentence discounted by ⅓ for pleading guilty)

R v SLS 2012 EWCA Crim 2158 (Drugs guidelines)

Issue – Does taking drugs into prison come within the drugs guidelines?

Facts – The Appellant was 17 and, shortly after being in an abusive relationship with a man, she started another relationship with a man who was in prison. He was ‘more mature and experienced’ than her and put pressure on her, which ‘it was difficult for her to resist’ to bring 21.1 grams of cannabis into prison for him.

By the time that she was sentenced, she was 18. She pleaded guilty (seemingly at the earliest opportunity) and received full credit.

She was actually charged with two offences; firstly taking a prohibited item (cannabis) into prison (contrary to s40B Prisons Act 1952) and possession of cannabis with intent to supply. It seems that this was the same cannabis.

She was sentenced to 6 months for the Prisons Act offence with no separate penalty for the cannabis offence. The maximum sentence for the first offence was 10 years, for the second : 14 years.

The appeal was based on the fact that the Sentencing Guidelines indicated that the categorisation was a Lesser Role and Category 4 offence, the appropriate starting point was therefore a low level Community Order.

Conclusion – The Court of Appeal dismissed the appeal, stating that whilst ‘there was very substantial mitigation’ they had to dismiss the appeal.

How did that tie in with the Sentencing Guidelines?

para 12 “We do not accept that the guidelines cover the offence for which the appellant was sentenced, that of taking a prohibited substance into a prison. They cannot be extended, having regard to decisions of the court in this area, to cover situations such as the present. A recent decision of this court is Attorney General’s Reference No 34 of 2011 [2012] 1 Cr App R (S) 49 , the Lord Chief Justice, Lord Judge, presiding. The circumstances were different in that the defendant in that case had numerous previous convictions and had served custodial sentences. The court substituted a sentence of four years’ imprisonment for the 12 months imposed by the judge. The drugs in that case included a Class A drug by way of 29.1 grams of heroin.”

So, in essence, because Ms S was charged and pleaded guilty to the different offence, a custodial sentence was inevitable. The implication was however that, had she been charged with just Count 2, the same conclusions would apply as the Guidelines would not apply.

Comments – Is the Court of Appeal right to say that this isn’t covered by the Guidelines?

Whilst it is strictly true that it did not apply to Count 1, the offending is the same. To the extent that there is any difference, Count 1 has a lower maximum sentence than Count 2 and therefore, a lower sentence would be appropriate.

But, notwithstanding that, do the guidelines apply to this sort of offending? We would suggest that, contrary to what the Court of Appeal seem to be suggesting, the guidelines clearly do.

Firstly. From the introduction to the guidelines, the first words under the heading ‘Applicability of Guideline’ –  “In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after 27 February 2012, regardless of the date of the offence.”

More clearly, from page 10 “Where the offence is street dealing or supply of drugs in prison by a prison employee, the quantity of the product is less indicative of the harm caused and therefore the starting point is not based on quantity.”. This clearly indicates that taking drugs into prison by someone working there is covered.

If there were any doubt, this would be dispelled by page 11 (dealing with supply offences):

“SIGNIFICANT role: [includes] • supply, other than by a person in a position of responsibility, to a prisoner for gain without coercion.”

This clearly indicates that the guidelines cover exactly this type of offending.

But what about the case cited? Well. Judgment was given on 15th June 2011, not only before the implementation of the guidelines, but before the consultation on the draft guidelines was published. To that extent, the guidelines supersedes the judgment referred to.

The starting point on the guidelines (before the guilty plea) was a low level Community Order. The offence in Count 1 is deemed by Parliament to be less serious, so should have attracted a lower sentence than the guidelines, not a higher. The reasons given by the Court for concluding that the guidelines were not applicable are very unconvincing and, we would suggest, wrong.

Conclusion

You could say, what is the point of having sentencing guidelines if you are going to ignore them when you feel like it? The Guidelines clearly are meant to cover an offence such as this and should be followed or, if the Court feels that the Guidelines are wrong, should say so in clear terms, rather than fudging the issue.

Community Orders

Legislation Criminal Justice Act 2003 s 177
Who can get one? 18 years +
Rehabilitation period 5 years (Rehabilitation of Offenders Act 1974 s 5(4a))
Youths The Youth Community Order was replaced in 2009 by the Youth Rehabilitation Order.

The basics

A Community Order is a non-custodial sentence available to over 18s. The orders typically include a number of requirements with which the offender must comply. The requirements can be punitive, e.g. Unpaid work (what many people know as ‘Community Service’), preventive, e.g. an exclusion requirement (requiring the offender to stay out of a pre-defined area) or rehabilitative, e.g. a course aimed at curbing and treating a drug addiction.

Power to order

The order may be made upon conviction, by the Crown Court or the Magistrates’ Court. The court must impose at least one requirement. (CJA 2003 s 177(1))

The offence must carry imprisonment. (CJA 2003 s 150A)

Exclusions a) sentences fixed by law, b) required sentences under FA 1968 s 51A(2) and PCC(S)A 2000 ss 110-111, c) required sentences under VCRA 2006 s 29(4) or (6), d) sentences of IPP or DPP. (CJA 2003 s 150(1))
Multiple offences Where the defendant falls to be sentenced for multiple offences, careful consideration needs to be given to what eventual sentence will be imposed. Guidance should be sought from the Totality Guideline 2012, recently issued by the Sentencing Council.

Test

The court may only impose a community order if it is of the opinion that the offence(s) is serious enough to warrant such a sentence. (CJA 2003 s 148(1))

Any restrictions on liberty must be commensurate with the seriousness of the offence(s). (CJA 2003 s 148(2))

The types of order

Low level
Persistent petty offending, some public order offences, some thefts from shops etc. Where the defendant’s previous convictions mean a discharge or a fine are inappropriate.
Suitable requirements might be: 40-80 hours of unpaid work, curfew requirement within the lowest range, exclusion requirement lasting a few months, prohibited activity or attendance centre requirements.

Medium level
Handling stolen goods worth less than £1,000, some burglaries in commercial premises, some obtaining property by deception, some TWOC (taking a vehicle without consent) cases.
Suitable requirements might be: 80-150 hours unpaid work, activity requirement in the middle range (20-30 days), curfew requirement up to 12 hours for 2-3 days, exclusion requirement around 5 months, prohibited activity requirement.

High level
For offences which only just fall short of the custody threshold, or where the threshold is crossed by a community sentence is more appropriate. An example might be a standard domestic burglary by a first-time offender.
Suitable requirements might be: 150-300 hours of unpaid work, a 60-day activity requirement, a 12-month exclusion order, a curfew requirement of 12 hours per day for 4-6 months.

(New Sentences: Criminal Justice Act 2003 Guideline 2004)

The requirements

Must be suitable The requirements must be tailored to the particular offender. (CJA 2003 s 148(2))

List of available requirements
Activity (18+)
Alcohol treatment
Attendance centre (18-25)
Curfew (18+)
Drug rehabilitation
Exclusion
Mental health treatment
Programme
Prohibited activity
Residence
Supervision
Unpaid work

Imposing requirements Requirements are imposed on a case by case basis; that is, the judge (Crown Court), or the district judge or magistrates (Magistrates’ Court) will assess what is the most appropriate way in which to deal with the offender.

Examples A shop-lifter who steals to fund his drug habit may be suitable for a combination of supervision, drug treatment and unpaid work. The unpaid work will act as a punishment and attempt to establish some routine and consistency in the offender’s life, the drug treatment will address the motivation for offending, and the supervision acts as a method of monitoring the offender’s progress.

A man who has pleaded to cultivation of cannabis may be suitable for punishment and supervision. He may receive 240 hours unpaid work and supervision. With the absence of a drug-addiction (the motivation for the offending being financial), drug treatment would be unnecessary.

Length of the order

Maximum length 3 years (CJA 2003 s 177(5))
Requirements Some or all of the requirements may be imposed for a period shorter than that of the order, or may be completed before the termination of the order. (CJA 2003 s 177(5))

Discount for time spent in custody

Restrictions on liberty Regard may be had to time spent in custody when considering the restrictions to be placed on the defendant’s liberty by the Community Order (CJA 2003 s 149)

General rule Although the statute states that the court may have regard to the period on remand, it is generally accepted that the court ought to do so. (see e.g. R v Rakib 2011 EWCA Crim 870 and New Sentences: Criminal Justice Act 2003 Guideline 2004)

Period on remand not the determinative factor R v Rakib 2011 EWCA Crim 870 held that where the defendant had spent a significant period on remand, but the court considers a community order to be the appropriate sentence, the period spent on remand is not and cannot be a necessarily determinative factor in deciding what the correct sentence is (as R v Hemmings suggests). It may be that the period served on remand is such that the court considers no further punishment is necessary. Where the defendant has served a period on remand equivalent to the maximum sentence, there is still a discretion to impose a community order, even if that includes substantial restrictions on liberty.