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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Forbes, R. v [2005] EWCA Crim 2069 (14 July 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/2069.html Cite as: [2005] EWCA Crim 2069

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		14 July 2005

Thursday, 14 July 2005

MR JUSTICE RICHARDS:

1. This is an appeal with leave of the single judge against a sentence imposed by His Honour Judge Ross at the Crown Court at Coventry on 10 November 2004, as varied on 26 November 2004.On 10 November, in accordance with indications previously given by him in the magistrates' court, the appellant pleaded guilty to offences of aggravated vehicle taking and driving while disqualified.Those offences were committed while he was on release on licence in respect of earlier offences of aggravated vehicle taking and driving while disqualified, for which he had been sentenced to fifteen months' detention in a young offender institution in January 2004.The unexpired portion of that earlier sentence was 116 days.
2. The position following the variation of sentence on 26 November was that the judge ordered the appellant's return to prison to serve that outstanding balance of 116 days.He then imposed a consecutive sentence of two years' detention in a young offender institution for the new offence of aggravated vehicle taking and a further consecutive sentence of six months' detention for the new offence of driving while disqualified.The total sentence, therefore, was one of two years six months and 116 days' detention in a young offender institution.The appellant was also disqualified from driving for three years and was ordered to take an extended retest.
3. The circumstances of the offences were as follows.Shortly after midnight on 5 September 2004 in the Coventry area, the owner of a Ford Escort motor car heard the sound of his car alarm.He looked out of his bedroom window, saw that the car had been moved and that the driver's door was open.He got dressed and contacted the police, but by the time he had done that he found that his car had gone.A short while later police officers on mobile control in a marked police vehicle saw the stolen car and started to follow it, the driver having refused to stop.As the Escort passed another police vehicle, the officers in that car recognised the appellant who was driving it.A high speed chase ensued along a dual carriageway which had a 40mph speed limit.The appellant drove in excess of 70mph, straddling the central dividing line.He made an illegal U-turn, headed back to Coventry City Centre and turned into a side road where the speed limit was 30mph and where he drove at between 55 and 60mph.He drove at that speed down that and other suburban streets.He failed to stop at junctions.He drove through three sets of red lights.He caused one man crossing the road to run off the road for his own safety.The appellant continued on his way.He drove the wrong way down a one-way street and across a paved area before joining another road.He turned right against a 'Keep Left' bollard into the face of oncoming cars and headed up a slip road onto the ring road in the wrong direction.At this point the officers, understandably, considered that it was too dangerous to follow him and abandoned their pursuit.
4. At about 2.20am the officers were asked to search again for the car which had been sighted once more.Again the appellant failed to stop.He sped through built-up areas at speeds of between 40 and 60mph.He drove the wrong way around traffic bollards, went through sets of red lights, went the wrong way around a roundabout and set off along a dual carriageway.Again the officers considered that it was too dangerous to follow him.They drove back onto the right side of the road.As they did so, the appellant made a U-turn and headed back towards them on the wrong side of the road.The officers started pursuing him again as he went through yet more red lights and drove the wrong way down a one-way street.He went over junctions without slowing down, drove down a number of streets without slowing down and crossed a grassed area before joining a further road.He drove through yet another set of red lights before slowing down as stingers had been deployed in the road.At that point he reversed towards a pursuing police vehicle.He touched the bumper of that vehicle before driving off in a different direction.He went the wrong way around a traffic island in the face of oncoming traffic.The officers considered that it was too dangerous to follow him and they abandoned their pursuit at about 2.40am.
5. At 3.15am the car was found abandoned near the appellant's home address.He was arrested at his home about an hour later after he had been tracked there by a police dog.When interviewed, he denied having stolen the car or having driven it.He admitted that he was disqualified from driving.
6. In sentencing him the judge, rightly, described the appellant as a menace.He said that the appellant's driving was some of the worst he had come across in the many years he had practised in the criminal courts.The appellant could so easily have killed a wholly innocent road user.On top of the fact that he was driving so dangerously, and when he knew he was disqualified, he was "out of his head" on ecstasy, as he himself had admitted in a letter to the court, which we also have read.The judge imposed the maximum sentence for each offence, saying that he was not giving any credit for the guilty pleas in the light of the fact that the appellant had no alternative but to plead guilty.He was recognised by police officers and a police dog had tracked him to his home.
7. The appellant was 18 years of age at the time of these offences.He is now 19.Despite his youth, he has a large number of previous convictions, including four of taking a motor vehicle without consent, one of theft of a motor vehicle, three of aggravated vehicle taking and three of driving while disqualified.The pre-sentence report referred to the fact that he seemed actively to enjoy the thrill of police chases.It noted the serious risk that he posed and said that if his behaviour continued, it was only a matter of time before tragedy overtook him and others.A supplementary report prepared for this court provides little in the way of encouragement.
8. All those considerations help to explain why the judge decided to impose the sentences he did.Mr Jacobs, however, appearing before us for the appellant, submits that the judge erred in two respects.First, he submits that the judge was wrong to deny the appellant credit for his pleas of guilty.
9. In R v March [2002] 2 Cr. App. R. (S) 448, 457, Gross J giving the judgment of the court stated the relevant principles as follows:

"(1) The general principle is that a plea of guilty attracts some discount from the sentence that would have been imposed in the event of a conviction following a not guilty plea.This principle, developed in the case law, has now received 'statutory recognition' in section 152 of the [Powers of Criminal Courts (Sentencing) Act 2000] ....

(2) The principle, however, is only a general principle: for instance, there is no invariable rule to the effect that a maximum sentence cannot be given in the case of a guilty plea.There are a number of well-established exceptions to the general rule and their list is not closed.When such an exception applies, a maximum sentence may be imposed, even in the event of a guilty plea.That said, given the general principle, it will rarely be appropriate to impose a maximum sentence where there has been a guilty plea.

(3) The exceptions to the general rule include at least the following: (i) where the imposition of a maximum term is necessary for the protection of the public; (ii) where the plea was of a tactical nature; (iii) cases where a plea is, practically speaking, inevitable; (iv) where the count is a specimen count.As to the effect of these exceptions, we incline to the view that the existence of an exception does not automatically mean that the maximum sentence is to be imposed regardless of a plea of guilty; all the circumstances fall to be considered.

(4) On the authority of Reay .... at page 535, it would appear that a further exception to the general principle arises in cases where the offence is of such seriousness that the public interest requires the imposition of a maximum sentence.If seriousness of the offence, by itself, meant that the maximum sentence was to be imposed despite a plea of guilty, then reconciling this suggested exception and the authorities would not be straightforward: see, for example, Sharkey and Daniels ...., where a guilty plea in respect of an appalling offence with grave consequences attracted a discount.In our judgment, the answer to this concern lies in the analysis set out in (3) above.Seriousness of the offence is a factor to be considered with all the other circumstances of the case in coming to the sentencing decision; in an exceptionally serious case, the court may (not must) impose the maximum sentence despite a plea of guilty.On this footing all the authorities can be reconciled; the rationale of the general principle is preserved (it would lack content if it could never operate in a serious case); finally, the court is not deprived of the power to refuse a discount on commonsense grounds in an exceptionally serious case."

10. In the present case it is clear from the judge's sentencing remarks that he had in mind the exception expressed which relates to "cases where a plea is, practically speaking, inevitable".In relation to that, however, regard must now be had to the guideline issued by the Sentencing Guidelines Council on reduction in sentence for a guilty plea.Paragraph 5.2, in a section on withholding a reduction, deals with the situation where an offender is caught red-handed.It states that, since the purpose of giving credit is to encourage those who are guilty to plead at the earliest opportunity, there is no reason why credit should be withheld or reduced on these grounds alone.The normal sliding scale should apply.
11. It is submitted that this case is not one that would fall within the exceptional category of offences so serious that the public interest requires the maximum sentence.In that respect counsel has drawn our attention in his written advice to a number of authorities, including R v Robinson and Scurry (1994) 15 Cr. App. R. (S) 452, which was a more serious case than this but one in which the court thought it nonetheless right that some credit should be given for a plea.
12. It is apparent from the supplementary report prepared for this court that receipt of the maximum sentence after he had entered early pleas of guilty has left the appellant in this case with a sense of injustice.That is a feeling for which, as it seems to us, there is some justification.The appellant's driving was truly appalling.His record makes the matter the more serious.But we do not think that the case falls into an exceptional category where it is right to deprive him of all credit for his pleas of guilty.What was said in March about the existence of an exception where a plea, practically speaking, is inevitable needs to be viewed with some caution in the light of the guidance given by the Sentencing Guidelines Council -- guidance which underlines the strong policy reasons why credit is generally to be given for a plea of guilty and why that credit should not be lost just because an offender would have little prospect of acquittal if he contested the case.In any event, in the particular circumstances of this case we do not think it right to deprive the appellant of the benefit of credit for his pleas of guilty.
13. The second submission made by Mr Jacobs is that the judge was wrong to impose consecutive sentences for the two offences.It is said that as a general rule concurrent rather than consecutive terms should be imposed for offences which arise out of the same incident.It is submitted that there is no justification for departing from that general rule in this case.
14. That is the general rule, but it is by no means an inflexible or invariable rule.There are numerous exceptions to it.Much depends on the particular circumstances.In R v Dillon (1983) 5 Cr. App. R. (S) 439 consecutive terms were upheld for offences of driving while unfit and while disqualified and taking a conveyance -- offences which were committed on the same occasion.Consecutive sentences were upheld on the basis that taking a conveyance was quite distinct from driving while unfit and while disqualified.The court observed that consecutive sentences could be imposed where the circumstances demanded it.
15. The basic offence in the present case of aggravated vehicle taking is the taking of the vehicle, albeit that the manner of driving was a feature of the aggravated form of the offence.It seems to us that the offence of driving while disqualified is sufficiently distinct to make it permissible to impose a consecutive sentence if the circumstances otherwise warrant it.Whether or not concurrent sentences would generally be imposed, it is not the case that they must always be imposed.Accordingly, we see nothing wrong with the judge's approach in imposing consecutive sentences.
16. Having regard, however, to what we have said about the reduction for pleas of guilty, we will allow this appeal by quashing the sentences in respect of the aggravated vehicle taking and driving while disqualified and substituting sentences of 18 months and four months respectively.They will remain consecutive, thus making a total of 22 months' detention in a young offender institution.That will remain consecutive to the 116 days' return to detention in respect of the earlier offences, which is not the subject of challenge on this appeal.There will be no change to the order made as regards disqualification.