SENTENCING UPDATES R v WAYNE STEWART MORGAN [2009] EWCA Crim 659When choosing to depart from the sentencing guidelines a judge should always explain why the sentence is either above or below the guideline starting point.The appellant (M) appealed against a sentence of imprisonment of 18 months on a guilty plea to one offence of assault occasioning actual bodily harm on his 18-year-old girlfriend. M had punched the victim, pushed her to the ground, punched her face and kicked her, though with bare feet so the injuries were comparatively minor, limited to bruising to her face and forehead and bruising and swelling to one arm. M had one previous conviction for obstruction of a constable in the execution of his duty for which he had been fined. Pre-sentence reports indicated substantial remorse. M submitted that the judge's starting point had been two years following trial, which M argued was too high given that the offence fell within the lowest category of the definitive guidelines.HELD: The sentence appeared to be inconsistent with the Sentencing Council's guidelines. While the guidelines could be departed from, a judge should always explain why he is passing a sentence above or below the guideline starting point. Though the instant case was difficult to categorise, it was a vicious and sustained attack and had been aggravated by the fact that the victim was a defenceless young woman. The appropriate starting point for an offence of this kind was 15 months' imprisonment. This was reduced to 10 months to reflect M's early guilty plea and his genuine remorse.  R v CHRISTOPHER TONNER (2009) CA (Crim Div) (unreported) (Goldring LJ, McCombe J, Sir Peter Cresswell) 19/5/2009 A sentence of nine months' imprisonment imposed for committing an offence before the expiry of the full term of an earlier sentence pursuant to the Powers of Criminal Courts (Sentencing) Act 2000 s.116 was unlawful and was quashed as the judge had not taken account of the days that the offender had spent in custody as a result of his licence being revoked.The appellant (T) appealed against a sentence of nine months' imprisonment imposed for committing an offence before the expiry of the full term of an earlier sentence pursuant to the Powers of Criminal Courts (Sentencing) Act 2000 s.116. T had committed further offences whilst on licence. He was arrested and his licence was revoked under the Criminal Justice Act 1991 s.39. T then spent 247 days in custody before he was sentenced. Only 15 of those days were time spent on remand; the remaining days were spent in custody as a result of his licence being revoked. The judge ordered T to serve nine months' imprisonment for breaching his licence.HELD: In sentencing T, the judge made no reference to the time T had spent in custody as a result of administrative recall. That time should not have been counted as time on remand: it should have been doubled and then deducted from the maximum period that could have been imposed for the breach of his licence under s.116 of the 2000 Act. In the instant case that was about four months. Had the judge realised that, he would have ordered a lesser period be served or even no period at all. The sentence was quashed.  CRIMINAL EVIDENCE UPDATES R v PATRICK ZENGEYA (2009)CA (Crim Div) (unreported)(Hallett LJ DBE, Simon J, Blake J) 6/5/2009 A conviction for obtaining services by deception was unsafe and was quashed as the Crown had failed to disclose relevant information relating to the credibility of the main prosecution witness in circumstances where the witness's credibility was at the heart of the case.Z had arranged for a car to be shipped from England to South Africa, by a company that he had dealt with on numerous previous occasions, for a fee. Z informed the company that another man (U) would be paying the fee. A man then attempted to pay the fee using two stolen credit cards, neither of which were authorised. Z then paid the fee. It was Z's case that U had offered to pay the fee as he owed him money. U denied owing Z money and denied owning any credit cards. Police searched U's premises and found items that could be used for credit card fraud. U stated that they belonged to another man. Finger print examination was carried out on some of the items. The items tested did not reveal U's fingerprints. U had previously been arrested in relation to unrelated matters concerning offences of obtaining by deception. The reference was made on the basis that the Crown had failed to disclose, or failed to give full and proper disclosure of, material relating to U's credibility; namely the tape and transcript of his interview under caution, the full list of items seized from U's property and the information that not all of the items seized were examined.HELD: Had the material been available, it would have had an effect on the jury, and it might have affected prosecution counsel's decision to call U and rely on his evidence. Z did not receive a fair trial. U's credibility was at the heart of the case and all relevant material relating to him should have been disclosed. The jury might have been given a misleading impression. The failure to disclose rendered the conviction unsafe. It was not in the interests of justice to order a retrial. R v JOHNSON & ORS [2009] EWCA Crim 649CA (Crim Div) (Maurice Kay LJ, Stadlen J, Holroyde J) 3/4/2009 A judge was entitled to admit previous convictions for dishonesty as bad character evidence for the propensity of the defendants to commit the offence of conspiracy to burgle, although the dishonesty offences were not the same description or category as the conspiracy offence as required under the Criminal Justice Act 2003 s.103(2)(a) and s.103(2)(b). Where s.103(2)(a) and s.103(2)(b) did not apply, propensity could be established by other means.The appellants (J) appealed in conjoined proceedings against their convictions for conspiracy to commit burglary with intent to steal. J were all closely related and lived in the same area. Several burglaries had been carried out at large country houses and commercial premises in a particular area that J all had close and detailed knowledge of. The burglaries were notable for the quantities and value of the items stolen, and it was alleged that the burglaries were manifestations of a single conspiracy. At trial, the prosecution applied under the Criminal Justice Act 2003 s.101 for leave to adduce selected previous convictions for conspiracy to burgle and steal, burglary dwelling and attempted theft as bad character evidence. The court held that, save for the previous convictions for conspiracy to burgle, the other convictions could not be admitted as evidence of propensity to commit the offence charged as they were not offences of the same description or category as required under s.103(2)(a) and s.103(2)(b). However, it also stated that bad character was also relevant to whether a defendant would participate in a conspiracy to burgle; therefore' the convictions could go before the jury on that basis. J were found guilty and were sentenced to various substantial terms of imprisonment. J submitted that (1) after ruling that the convictions evidence could not be adduced on a propensity basis, the judge erred in law by holding that it could be adduced as relevant to the issue of whether a defendant would participate in a conspiracy to burgle. They contended that the issue of whether a defendant would participate amounted to no more than propensity, but differently articulated. J also argued that in summing up the directions on bad character, the judge should have been more protective of J in his warnings. HELD: (1) It was clear that the issue of whether a defendant would participate in a conspiracy to burgle was synonymous with the concept of propensity, and therefore the issue by reference to which the bad character evidence was admitted was in truth propensity. However, such an error was not fatal to the judge's ruling. The error of the judge was to consider that the prosecution could not establish propensity because conspiracy to burgle was not an offence of the same description or category as the previous convictions for dishonesty of burglary dwelling and attempted theft. However, it was clear from s.103(2) that other ways of establishing propensity were not excluded, and that all s.103(2)(a) and s.103(2)(b) did was to provide permissive and simple ways of establishing propensity. Where they did not apply, propensity could still be established by other means. If the judge had not fallen into error in concluding that propensity was off the agenda, he would have admitted the bad character evidence on a propensity basis. It was obvious that, having decided to admit the evidence on a basis that was synonymous with propensity, he would have admitted it on a propensity basis but for his error. It followed that the error, by itself, was not material to the safety of the convictions. In addition, the general tenor of the bad character directions was fair, balanced and appropriate, and there was no misdirection and no basis for complaint. Appeals against conviction dismissed.     Horncastle & Ors v R. [2009] EWCA Crim 964 (22 May 2009) In this case, with a 5 Judge constitution, the Court of Appeal considered the practical effect of Al-Khawaja and Tahery v UK [2009] ECHR 26766/05 ( a case which the UK is seeking to appeal).  The Court has held: "we conclude that, provided the provisions of the CJA 2003 are observed, there is no breach of Article 6 and in particular Article 6(3)(d), if the conviction is based solely or to a decisive degree on hearsay evidence admitted under the CJA 2003. There is nothing in our view in the judgment of the ECtHR in Al-Khawaja considered in the light of a full analysis of the CJA 2003 that leads us to conclude that this court was wrong in the result it reached in a number of its decisions in relation to Article 6 and Article 6(3)(d). Where the hearsay evidence is demonstrably reliable, or its reliability can properly be tested and assessed, the rights of the defence are respected, there are in the language of the ECtHR sufficient counterbalancing measures, and the trial is fair. There is therefore no reason which justifies us departing from the conclusions in that line of authority binding on us, particularly in the light of their approval in the opinion of the Privy Council given by Lord Bingham in Grant v The Queen at paragraphs 17(2) and (3). What Article 6 requires is that the trial shall be fair. As we have set out, Article 6(3)(d) is not simply one example of the right to a fair trial, but has a content of its own. But given that Article 6(3)(d) does not create any absolute right in an accused to have every witness against him present to be examined, the balance struck by the code enacted in the CJA 2003 is a legitimate one and wholly consistent with the ECHR. We conclude therefore that, applied in this way, the principled solution provided for by the CJA 2003 in relation to hearsay evidence is consistent with Article 6(3)(d) of the ECHR, and is not further qualified by a separate test relating to whether the evidence is sole or decisive in the case. It is not therefore necessary for us to consider the methods by which a sole and decisive test could be written into the code set out in the CJA 2003. "