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HIS HONOUR JUDGELW QC
MR BRIAN N appeared on behalf of the PROSECUTION.
MR GEORGE HEPBURNE-SCOTT appeared on behalf of the Defendant B.
Transcript of the DARTS recording by Marten Walsh Cherer, 1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London, WC2A 1HP.
THIS IS A FULL AND ACCURATE TRANSCRIPT WITH NAMES OF THE JUDGE AND DEFENDANT AND PROSECUTOR DELETED FOR PRIVACY
Thursday 16 January 2015
(The Defendant was identified)
THE PROSECUTION OUTLINED THE FACTS OF THE FOUR OFFENCES OF (1) ROBBERY, (2) POSSESSION WITH INTENT TO SUPPLY A CLASS A DRUG, HERION, (3) COMMON ASSAULT, and (4) POSSESSION OF A CLASS A DRUG, HEROIN
MR HEPBURNE-SCOTT: Your Honour, these are clearly very serious matters, and, of course, perhaps the easiest and the obvious sentencing option would be an immediate custodial sentence. I am going to urge upon your Honour a more positive and more constructive sentence which I say is merited for a number of reasons, not least because prior to these offences the Defendant had committed no offences whatsoever, and in fact had led a very constructive and positive life. Your Honour will see from letters I am going to hand up from his grandmother that he in fact did suffer from dyslexia and he went to Thomas Bennett School where he was helped with this condition and spent time in what is known as The Link, and there was a very positive teacher there who helped him. I will hand these up if I may because it may be helpful.
JUDGE LW: Yes, it is probably easier. (Same handed and read) Yes, I have had a chance to read those. I have not finished reading the reports. Do you want me to read those now?
MR HEPBURNE-SCOTT: Yes, please, your Honour, I will be referring to them.
JUDGE LW: Yes. Give me a moment. (Pause) Yes, Mr Hepburne-Scott.
MR HEPBURNE-SCOTT: I am grateful. If I could deal with this as shortly as Ireasonably can and deal with it in this way: before this offending, during this offending and after this offending: before this offending, and, of course, the offending was concentrated in a period of nine months, as your Honour will have noticed, from May 2013 through to March 2014, and prior to that he in fact completed two years at the Camilia Botnar Foundation in Cowfold. The CamiliaBotnar Foundation provides residential training and work experience helping young people ---
JUDGE LW: Yes, I saw that, and he was disappointed that he did not get an extension there. It obviously suited him.
MR HEPBURNE-SCOTT: Indeed, because he is not academic, he is more manual and he was doing very well there. Unfortunately it did not lead to full-time employment. He went back to Crawley. He was homeless. He went to The Foyer which is a known place for people for whom the next step is homelessness, and in The Foyer unfortunately he fell into the wrong crowd, which is precisely when this offending started, because he lost the place at the Botnar Foundation at the beginning of 2013, and that is precisely when these offences started to occur; prior to that he had no offending history whatsoever. It was then he fell into the wrong crowd and this offending period began. We have the robbery in May 2013. I think there was a shoplifting in January 2013, and there was the assault in September 2013 and in January 2014 the possession with intent to supply and March 2014 the possession of heroin etc.
If I could deal with the matter chronologically as briefly as I reasonably can: guilty pleas to the robbery. Your Honour sentenced his co-defendant who had not pleaded guilty to a nine month suspended sentence. Your Honour observed on sentencing the co-defendant that the co-defendant C had set it up because he knew the victim had had arranged for him to be at a certain point at a certain time, whereupon he was attacked by the defendant and was robbed, as your Honour knows. This defendant pleaded guilty to that matter and the co-defendant was sentenced on a joint enterprise basis.
In the pre-sentence report in relation to the robbery your Honour will have noted the multiple references to his genuine remorse; his victim empathy and, of course, his thinking deficits in relation to that. At the bottom of page 2 of 8:
“Mr B demonstrated some victim empathy by acknowledging Mr P would have sustained physical injuries, would have felt frightened and he would have felt angry that his phone had been stolen. However, he acknowledged he gave little thought to victim at the time of the offence, which is self-evident.”
At the end of the second paragraph on page 3 of 8, “The index offence demonstrates deficits in Mr B’s thinking which he could benefit from completing work around.”
The third paragraph, second sentence, “He is extremely remorseful and regretfulof his actions. This possibly may have motivated him to acknowledge his difficulties and the facts associated with this offending. He presents as motivated, has developed his understanding and improved his awareness of alternative coping strategies which are a good starting point.”
On page 4 of 8 it refers in the fifth paragraph to the Camilia Botnar Foundation, and then it says in the penultimate paragraph: “He was signed off as unfit to work due to anxiety and depression in September” etc.
On page 6 of 8, in the second paragraph it states, “In my opinion the risk Mr Bposes could be reduced if he were to gain a deeper understanding and motivation behind his actions and improve his ability to deal with conflict in an appropriate way, increase his emotional recognition and control, develop his consequential thinking skills and problem solving” etc.
In relation to the assault, it may not be the most serious matter before your Honour, but it involves the theft of a bicycle from a friend, and he became involved in that dispute unfortunately. He was subjected to a conditional discharge. In January 2014, which, together with the robbery, is perhaps the most serious matter, the possession with intent to supply heroin and cocaine and possession of cannabis. In relation to that he got into a drug debt from his time at The Foyer in relation to cannabis and cocaine. His debt reached £3,000. He has told me, frankly, he was put in a car with someone who had a driving licence but who was a crack user who could not be trusted by the group to sell the drugs so the defendant was entrusted to sell the drugs, and the other man was the driver. The defendant tells me he was given £100 a day which came off the debt. It is very clear that it was a drug dealing group that put him in the car, gave him his stock, told him what to do and how to do it, etc., getting the phone etc. and he was told what to do and it was to come off the drug debt, not an uncommon occurrence your Honour, in my submission. He was pressured and played a limited role, a lesser role in my respectful submission, which would enable your Honour to sentence within the sentencing guidelines to a non-immediate custodial sentence in my respectful submission if your Honour were so minded given the lesser role in category 3 on a guilty plea. With a starting point of three years, your Honour could properly impose a sentence of two years.
JUDGE LW: That would be all right if he had just the one offence.
MR HEPBURNE-SCOTT: Yes.
JUDGE LW: The difficulty is that I am sentencing him (a) for a robbery, which on the face of it calls for an immediate sentence, Class A drugs followed by a further arrest for Class A drugs. You are going to have to explain how I justify a non-immediate sentence.
MR HEPBURNE-SCOTT: The main thing your Honour is that he was not offending before this period began; he has not been offending since, in the following ten months he has committed no offences whatsoever. In the ten months to today he has been working, paying rent, paying tax, being a productive and constructive member of the community, responsible and respectable, for the last ten months.
JUDGE LW: That is commendable and I accept that but how do I justify a non-immediate custodial sentence where I have three sets of offences all of which have, basically, a minimum of two years as a starting point.
MR HEPBURNE-SCOTT: In my respectful submission, clearly it is difficult for me to persuade your Honour of that but I would submit that your Honour could properly do that on the basis that (a) the co-defendant received a suspended sentence of nine months for the robbery, for the self-same robbery for which he pleaded not guilty, caused the victim to give evidence and contested the matter and tried his luck. The defendant pleaded guilty at the very first opportunity.
JUDGE LW: He also kicked him on the floor.
MR HEPBURNE-SCOTT: He inflicted the force, your Honour, yes, which is deeply unattractive but, of course, the co-defendant lured his friend, which is an aggravating feature in his case, but given the parity of sentence your Honour could properly suspend the sentence for that, in my respectful submission, given it was a joint enterprise and he benefits from a guilty plea and he was only 19.
In relation to the possession with intent to supply, given his limited role your Honour could sentence him to a sentence of two years or less properly within the guideline, given the guilty plea, which would enable your Honour to suspend. Your Honour, those are the two main sentences which would on the face of it attract an immediate custodial sentence. In relation to the other matters, possession only of Class A drugs would not necessarily attract an immediate custodial sentence, in my respectful submission, nor would the other matter of common assault, so on the two principal matters, your Honour, those are my submissions, that your Honour could properly ---
JUDGE LW: The common assault was where?
MR HEPBURNE-SCOTT: It was in Crawley, in September 2013. He was given a conditional discharge.
JUDGE LW: Yes.
MR HEPBURNE-SCOTT: So the only two matters for which your Honour may well be minded to impose an immediate custodial sentence are (a) the robbery, which I have made submissions in relation to, (b) the possession with intent to supply, given the role, given the guilty plea, given the lack of antecedents in relation to the possession with intent to supply I would submit that, given his age and his behaviour subsequently, your Honour could properly impose ---
JUDGE LW: But you are forgetting the second of those?
MR HEPBURNE-SCOTT: The possession?
JUDGE LW: Yes, with intent.
MR HEPBURNE-SCOTT: The possession of heroin, yes, I submit that in relation to that mere possession of a Class A drug would not in itself ordinarily attract an immediate prison sentence. Of course it was pretty stupid to be possessing heroin after he had been arrested for supplying heroin, which weaves into the stupidity argument of whyin this concentrated period of nine months he has clearly been incredibly stupid but has made every effort to redeem himself and to restore the situation through his own actions. He has attended Addaction. He is attending somewhere for anger management. He is working. He has got privately rented accommodation. He is about to be a father in March. He has got the strong support now of his family. His grandmother has attended on each occasion, a very responsible confident lady. She is in court. If I may I will invite your Honour to hear from her briefly in character evidence. He has got his girlfriend, and of course she supports him. He has now got his mother and father who also support him and he is a far better place than he was when he commenced this series of offending and in my respectful submission, your Honour, the public and society of course would be served by an immediate custodial sentence. Of course that could not be criticised, but they may be better served by building on his new responsible productive, constructive attitude and it may be a more positive sentence which would enable the court to control him for a period of two years and to monitor his ongoing progress and reintegration back into society, which may not be served with a custodial sentence which may obviously have a slightly different effect.
Your Honour, may I call Joyce B?
JUDGE LW: Yes.
MR HEPBURNE-SCOTT: Briefly, I realise the time and I realise other counsel are keen to get on.
JUDGE LW: Please do not worry about that.
JOYCE B, Sworn – GRANDMOTHER GIVES EVIDENCE
(The witness withdrew)
MR HEPBURNE-SCOTT: I am very grateful to your Honour hearing from that witness and listening to my perhaps over-lengthy submissions. Your Honour does have the power to be merciful to this young man, in my respectful submission, properly within the guidelines given the guilty pleas and the role of PWI (Possession with Intent to Supply) and the sentence for the co-defendant in the robbery. In my respectful submission, that sentence would be a proper sentence in the circumstances given all the mitigation and the fact that he has been impeccably well behaved in the last ten months. It was a concentrated period of time, borne out of circumstances of mental illness and he committed a series of offences within that limited of time and he bitterly regrets that. He has done everything he can to redeem himself and he has pleaded guilty to every single matter and he does ask for your Honour’s mercy in this particular case with a positive constructive, although very punitive, sentence which your Honour can impose within the community and would involve also a prison sentence although not an immediate one.
JUDGE LW: Thank you.
JUDGE LW: MrB, totting up the sort of sentences that you should get for these offences we get to about four to five years: that is the reality of it but somehow there seem to be circumstances that make that the wrong sentence. To impose a sentence which I hope will allow you to continue to make progress but holds a threat over your head I am going to distort what should happen.
For the robbery there will be nine months suspended for two years. For possession with intent to supply Class A drugs two years imprisonment suspendedtwo years on each concurrent: for possession of the cannabis three months suspended, that is concurrent to the two years and concurrent to the nine months. The bladed article, six months suspended for two years, again concurrent.
For possession of heroin there will be a fine of £150: for the obstructing a police officer a fine of £200. There will be no order on the breach of conditional discharge.
There will be a statutory surcharge on the possessions with intent to supply Class A drugs (£100). You will be told what that is by Mr Hepburne-Scott.
I may be doing the right thing by you but there are a large number of members of the public who will think I have gone stupid. If you come back because you behave badly in the next two years you will come back to me and you will be sentenced to that sentence of imprisonment, so do not, but you are very lucky.
I have put down 250 hours of unpaid work. Does that need to attach to any particular sentence? Possession with intent to supply Class A drugs.
The drugs and the bladed article will be forfeit and destroyed.
The fines should be paid at £50 per months, first payment 1 February.