Q1 My Barrister Said I Would Get 15 Years

Robert’s Postbag: March 2011

Q1 My barrister said I would get 15 years. Because my wife had Alzheimer's disease I pleaded guilty at the first chance. I was thinking 15 years, a third off, so down to 10 and get out in 5 years. I didn’t ask for reports but the Judge did. It was a bad report. I received life with a 10 year term. There were concurrent sentences for some of the charges of between 13 and 16 years. My barrister came to see me in the cells and said, “Sorry”. We appealed and the court decided the starting point was 25 years. However the concurrent sentences were 13 to 16 years. With a third off it would 10 years and divided in half that would make 5 years 4 months. In fact I got 8 ½ years. Did they get the sums wrong?

A1 No. I have looked at your Court of Appeal judgment.

Fixing life terms in non-murder cases is done as follows. Firstly, work out how long the sentence should be if it wasn’t a life sentence (in your case 25 years). Secondly, work out the proportion that should be deducted for the plea if any, (in your case one third). Thirdly, divide the notional term by that figure and deduct that from the notional term, (in your case 25 – (25 years ÷ 3). The Court of Appeal rounded that figure up to 17 years). Fourthly, divide the notional term by usually one half to arrive at the minimum term, (in your case 17 ÷2 = 8 ½ years). Lastly, deduct the period on remand, (in your case 161 days). This is the minimum term, (in your case 8 years 21 days).

This calculation is not concerned with the fixed term sentences (in your case 13-16 years).

In murder cases there is a different calculation.

You might be interested to know, the Court of Appeal noticed whereas the Judge and the advocates did not that one of your sentences was unlawful. Correcting the sentence had however, no impact on the life sentence.

Q2 I am serving a sentence for counterfeiting currency. I have a shoplifting previous. I have just been charged with shoplifting. Does the three-strike rule apply to me?

A2 No. It only applies to domestic burglary, (three years) and class A drug trafficking offences, e.g. supply and importing cocaineand heroin, (seven years). There are minimum sentences for certain firearm offences. However, those minimum sentences do not depend on whether the defendant has been convicted of another similar offence.

Q3 In 2005 I was convicted of conspiracy to import cocaine. The Judge gave me 22 years. I would like to renew my appeal. Can I appeal out of time?

A3 I assume that you appealed the sentence and were not given leave by the single Judge. Once the time limit for renewing an appeal (14 days) has expired, applicants have to apply to lodge an appeal out of time as well as applying for leave. The official rule is that the power would be rarely exercised and the only issue is whether the applicant has an excuse. The Court has held that a change of heart is not an excuse. One would expect no problem if the appeal was renewed a day late. The longer the delay, the more difficult it is to renew an appeal. However if the sentence is clearly unlawful then the Court grants leave to renew whatever the delay. In case it appears that in your case your counsel argued on his paper application that the sentence was too long. The single Judge considered all the arguments. I can on those facts see no prospect of the full court at the Court of Appeal wanting to grant either the renewal out of time or the leave to appeal.

Q4 I used to be in the French Foreign Legion. Back here I was convicted of murder and my colleague and I were sentenced to 28 and 29 years detention during HM’s Pleasure. My date of birth is listed in the court papers as ten days before my actual birth. Also the court papers misspelt my middle name and missed a letter in my surname. Are my arrest, conviction and sentence valid?

A4 Yes. The differences you raise could not have had impact on the arrest, the evidence or the court processes.

Two months ago, I wrote about an Albanian girl who was thought to have been trafficked for prostitution. The answer I gave was in part based on R v O 2008 EWCA Crim 2835. The day after I sent my article to Inside Time, the Court of Appeal gave its judgment in R v LM 2010 Crim LR 2327. This was a consolidated appeal of a number of defendants. Three defendants who had pleaded guilty to controlling prostitutes had their convictions quashed at the prosecution’s invitation because of the failure of the prosecution to apply Article 26 of the European Convention on Human Rights. That article deals with not imposing penalties on victims when they have been compelled to be involved in unlawful activities. At a late stage the CPS accepted that the women had been coerced into prostitution. The court found that the women were victims of trafficking and they had also become voluntary abusers of others through violence and threats. The message is clear that the police, the immigration agencies, the lawyers and the judges have to give every assistance to these victims.