Maxwell v R, Court of Appeal - Criminal Division, August 22, 2017,  EWCA Crim 1233
|Issuing Organization:||Criminal Division|
|Actores:||Maxwell v R|
|Resolution Date:||August 22, 2017|
Neutral Citation Number:  EWCA Crim 1233
Case No: 2017/03153/B1 2016/1529/B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CARDIFF CROWN COURT
His Honour Judge Richards
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON LORD JUSTICE TREACY
THE HON MS JUSTICE RUSSELL
HER HONOUR JUDGE CUTTS QC
(Sitting as a Judge of the Court of Appeal, Criminal Division)
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(Transcript of the Handed Down Judgment.
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Mr J Evans (instructed by Crown Prosecution Service) for the Respondent
Mr T Hartland (instructed by Registrar of Criminal Appeals) for the Appellant
Hearing date : 26 July 2017
As Approved by the Court
Crown copyright ©
Lord Justice Treacy :
Introduction 1. This is an appeal against conviction and sentence. The appellant pleaded guilty in the Crown Court at Cardiff to a large number of offences. He was sentenced on 29th February 2016 to a total of 7 years and 4 months' imprisonment. In addition, he was disqualified from driving for 3 years and until an extended test was passed. This penalty was imposed on Count 6. His licence was endorsed in relation to Counts 3, 7 and 15, and also on Charges 1, 2, 3 and 4.
The details of the sentences passed are set out in the table below.
It will be seen that, in relation to Count 5, burglary, the table does not specify whether the sentence was to run consecutively or concurrently. That is because the judge failed to do so. However, the judge stated the total sentence and it is clear from that that his intention was that Count 5 should be served consecutively.
The facts show that this appellant and a female co-accused committed a series of offences between 1st and 10th November 2015. The co-accused was not involved in all the offences admitted by this appellant. She received a sentence of 3 years and 8 months' imprisonment.
We begin with the four theft offences and allied matters. On Count 1, on 1st November 2015 the appellant and co-accused stole a quantity of meat of unknown value from a Co-op store in Barry. On 7th November the co-accused stole clothing valued at about £240 from Tesco in Barry. She ran out of the store pursued by a member of staff, who recovered the clothing but was unable to prevent her from escaping with the appellant, who had waited outside for her in a car driven by him (Count 2). At the time the appellant was disqualified from driving (Count 3) and uninsured (Charge 1). On 9th November 2015 the pair stole coffee from Sainsbury's in Barry (Count 16). On 10th November they stole hair straighteners and clothing valued at about £8 from Poundstretchers in Barry (Count 18). No value was attributed to the thefts in Counts 1 and 16.
We next deal with the burglary and associated offences. At about 5.00 p.m. on 9th November 2015 a Mrs White was at home in Barry with her husband and three grandchildren. The appellant entered her house unseen by anyone and stole her handbag and contents (Count 5). The handbag contained the keys to her car which the appellant took from outside her house (Count 6). He drove that vehicle whilst disqualified (Count 7) and uninsured (Charge 2). He was subsequently identified from CCTV at the scene and by clothes worn on his arrest.
About an hour later the appellant was driving Mrs White's car in Cardiff. He suddenly stopped his vehicle in the middle of the road. The driver of the car behind stopped in time to avoid a collision. However, the appellant then reversed his car into the other vehicle causing considerable damage before driving off and abandoning Mrs White's car a short distance away (Count 6). Mrs White is disabled and needed her car. She was caused very great inconvenience and upset by the burglary of her home and the taking and damaging of her car.
We next turn to offences involving robbery or attempted robbery. On the evening of 9th November the appellant and co-accused committed two attempted robberies (Counts 11 and 12) and one robbery at a road junction in Ely, Cardiff. In Count 11 the appellant attempted to rob a woman of her car when it stopped at traffic lights. He attempted to get into the car using abusive language and banging on the window. However, the lights changed and the woman was able to drive away.
Count 12 took place soon afterwards. A Ms Hobden had parked, waiting to pick up an elderly friend. The friend lacked mobility and was having trouble getting into the car. The appellant approached them just as the friend got inside the car. Ms Hobden locked the door, which the appellant tried to open. Ms Hobden was able to drive away.
A few minutes later, Count 14, the robbery, took place. The appellant approached a Ford Fiesta driven by a Ms Harwood when it stopped at traffic lights. He opened the driver's door and told her to get out. He gripped her face tightly and had his fingers around her throat and mouth, using violent language towards her. Pulling her by her face, he forced her out of her car. When she was half way out he punched her forcibly to her torso. The appellant and his co-accused then got into the car and drove off at high speed. The appellant was disqualified from driving (Count 15) and had no insurance (Charge 3).
On the following day the appellant was still driving Ms Harwood's Ford Fiesta when he was seen by the police in Barry. Once more, he was driving whilst disqualified (Count 19) and without insurance (Charge 4). Police gave chase and the appellant eventually collided with some bollards and made off from the vehicle. He was arrested soon afterwards. When interviewed, the appellant admitted his offending with the exception of the burglary.
Failures in Passing Sentence
Apart from the failure to specify whether the burglary count was to run concurrently or consecutively there were a number of other problems with the way in which the judge passed sentence. He referred to the four offences of theft as burglaries. He passed a term of 2 years' imprisonment on Count 6, aggravated vehicle taking, when the maximum was 6 months' imprisonment, since it was not alleged that the damage done exceeded £5,000. The judge failed to pass any sentence on Count 15 or in relation to the four charges concerning using a vehicle without insurance. The judge imposed a period of disqualification of 3 years without making any adjustment...
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