Neutral Citation Number:
[2009] EWCA Crim 380
Case No:
200805151 A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 20th February 2009
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE LLOYD JONES
MR JUSTICE CRANSTON
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R E G I N A
v
JOSEPH BENJAMIN PULLEN
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Mr S Taylor
appeared on behalf of the
Appellant
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J U D G M E N T
1.
LORD JUSTICE HOOPER: Mr Justice Lloyd Jones will give the judgment.
2.
MR JUSTICE LLOYD JONES: On 11th August 2008 at the Crown Court at Kingston upon Thames, the applicant pleaded guilty and on 15th September 2008, he was sentenced by His Honour Judge Samuels QC as follows: Count 1 for destroying property and being reckless as to whether life was endangered, imprisonment for public protection; Count 2 for common assault, four month imprisonment to be concurrent; Count 3 for dangerous driving, 15 months imprisonment to be concurrent. The total sentence was one of imprisonment for public protection. The period of 30 months, less the 105 days spent in custody on remand was specified under section 82 A of the Powers and Criminal Courts Sentencing Act 2000. He was also disqualified from driving for five years with a direction that thereafter he take an extended retest.
3.
He now renews his application for leave to appeal against sentence following refusal by the single judge. He has been represented before us today by Mr Taylor of counsel acting pro bono and we are grateful to him for his submissions.
4.
On 31st May 2008, the applicant went to see his girlfriend, who lived in New Malden and was employed as a nanny. She had been away with her employer as part of her job. This appeared to have made him jealous and angry and after she opened the door, he pushed his way past her and snatched her mobile phone from her before going back outside. She went after him in order to retrieve her phone, whereupon he slapped her on the cheek, causing pain and reddening. That gave rise to Count 2.
5.
He then told her that he was going to her employer's home to cause trouble which would mean she would lose her job. He then drove off in his Land Rover Freelander. She followed him on her bicycle and he tried to hit her with his vehicle before he blocked the road, which caused an argument with another driver. Whilst that was happening, she was able to cycle away.
6.
The incident was reported to the police and officers spent the remainder of the day looking for him. That evening he was seen to drive past the woman's home twice. At 11.40 pm, the applicant was again seen to drive past her home and on this occasion, the officers decided to stop him. They illuminated the lights on their car and indicated to him to stop. He pulled over and the police car stopped behind him. The officers alighted and approached the applicant's Freelander. As they did so, they heard him revving the engine and he then reversed at speed towards the police car, causing the officers to dive out of the way to avoid injury. He reversed into the police car, causing it to move back between five and ten metres and the front end to concertina. He then shouted, "Come on, if you want to make something of it" before he drove off. The officers summoned assistance.
7.
Two other officers were driving a marked police car and were in the area. They commenced a search and as they drove round the roundabout, the applicant deliberately rammed the passenger side of their vehicle at speed. He did not stop but drove off at speed. As a result, one of the officers sustained minor injuries to his arm. That gave rise to Count 1.
8.
The officers were able to give chase, in company with other police vehicles. During the ensuing chase, the applicant drove with complete disregard for the speed limit, traffic lights and other road users and on at least three occasions deliberately reversed his vehicle towards chasing police vehicles.
9.
The chase took place along Kingston Road where he drove at 60 m.p.h in a 40 m.p.h per speed limit. In Ruxley Lane he drove through a red light, causing another vehicle to break and swerve to avoid a collision. He then started to reverse towards the chasing police car at speed, causing a police car to swerve out of the way to avoid being hit. He got within about a foot of the vehicle before driving off again towards the Ewell bypass, again driving in excess of the speed limit through red lights and causing other vehicles to stop or swerve out of his path.
10.
Shortly after he had gone through a junction, he reversed his vehicle towards the police car causing the police car to have to reverse back through the junction in order to avoid being hit. Officers were fearful of the danger that they would have hit other road users or pedestrians by reversing.
11.
He continued along the Ewell bypass, still driving in excess of the speed limit and through red lights, into a residential area around Tattenham Corner, where he reached speeds in excess of 80 m.p.h. At about this time he turned off the lights on his vehicle and turned onto Epsom Downs racecourse. He did so by driving into a car park and then smashing through a fence. By this time he was pursued by about three other police vehicles one of which he managed to ram. Whilst on the racecourse, he drove his vehicle in effectively ever decreasing circles in an attempt to ram the police vehicles that were following him by getting behind them. He still had his lights off at this time and he managed to hit at least one vehicle.
12.
The police received an order to stop actively pursuing him but even after they had stopped pursuing him, he still tried to drive at them and ram them, and on one occasion drove deliberately and at speed towards the front of one of the police vehicles, still with his lights off, before switching to full beam as he got closer to the police vehicle, so that the driver of the vehicle was dazzled. The officers in that vehicle again feared that they would be hit, but managed to get out of the way. He then burst over a small embankment back on to the public roads, still driving with his lights off.
13.
Eventually, his vehicle was brought to a halt when a stinger was laid across the road. He got out of his vehicle and ran off on foot but he was detained, arrested and taken to the police station.
14.
In interview, he flatly denied assaulting his girlfriend and made no comment to all the other questions he was asked about his subsequent driving. However, he did say that he accepted that he had reacted stupidly and behaved like a fool.
15.
The applicant was born in February 1965, so he was 43 years of age at the time of this incident. His previous convictions include six previous convictions for criminal damage, five for common assault, four for assault occasioning actual bodily harm, four for assault on the police, three for threatening behaviour, one for inflicting grievous bodily harm and one for an affray.
16.
It is necessary to say something about two of those previous convictions. In February 2007 he was convicted of criminal damage and affray. He was sentenced to four years imprisonment for criminal damage with two years imprisonment concurrent for the affray. On appeal the sentence for criminal damage was varied by this Court to one of 45 months imprisonment to take account of a sentence for contempt of court which meant that he had, in effect, been sentenced twice for the same conduct.
17.
These offences are particularly pertinent to the issues before us today. Immediately prior to those offences, Mr Pullen had lived with the victim. She had reported allegations of assault and threats to kill to the police. The applicant was arrested at the home that they shared as a result of these allegations. He was bailed on the condition that he stayed away from that address. One evening a month later, the complainant went out for the evening leaving her stepmother and one of her own children babysitting the younger children. At 10.45 pm, the stepmother heard a crash at the front of the house. Mr Pullen was found in the front room having gained entry through a window which he had broken. He commented that the house was his and that he was going to smash it to the ground and that he had come prepared. He called a taxi and removed the stepmother and the children from the property before starting to demolish the house. Mr Pullen, thereafter, continued in a two hour rampage of destruction, using the tools that he had brought with him for the purpose. Upon the arrival of the police, Mr Pullen continued smashing windows and other part of the house.
18.
The occupants of the adjoining semi-detached property were evacuated. The Tactical Support Group arrived in company with an ambulance and the Fire Brigade. The Tactical Support Group finally forced their way into the property. The electricity was cut off and the place was in darkness. Mr Pullen then barricaded himself in the loft and threw down on the officers below television sets, furniture and a gas cylinder. There was a smell of gas and water was pouring down the walls. Mr Pullen admitted afterwards that had gone totally berserk. He smashed through onto the roof where he caused further damage to the property with a shovel and a hammer in his possession.
19.
On that occasion, two psychiatric reports were prepared. They described him as suffering from severe depression, as a result of the breakdown in his relationship. That, they said, was the main factor relating to the above offences, coupled with provocation and enormous anger.
20.
Mr Justice Rougier giving the judgment of this Court on his appeal against sentence in relation to those offences described him as having gone totally berserk. He described him as somebody who, in his view, was totally self centred and vindictive with no capacity whatever for controlling his temper in the face of opposition or when confronted with wrongs real or imagined.
21.
The initial Pre-Sentence Report prepared for the sentencing hearing, in respect of the offences with which we are concerned today, recommended a suspended sentence order with requirements of supervision, two programmes and treatment for depression.
22.
However, it later became apparent that the author of that report had not been aware of the details of the offences for which he was sentenced in 1997, to which I have just referred, or of the Court of Appeal judgment. As a result she was invited by Judge Samuels to review her report. She did so. In the addendum report, which she then produced, the author, Miss Douglas, concluded that she agreed with His Honour Judge Samuels that Mr Pullen did present a serious risk of harm to others, namely to females with whom he may commence further relationships and to members of the public in confrontational circumstances or in attempting to resist arrest. In those circumstances she said that she was unable to propose a community option as the court had already made clear that a custodial sentence for public protection was warranted.
23.
In sentencing this applicant Judge Samuels observed that he would receive the appropriate credit for his pleas but he could not receive extensive credit as the facts spoke for themselves. His record clearly demonstrated that he had an anger management problem and that when he was frustrated he lost all self control. Until he satisfactorily addressed those characteristics, he posed a significant risk to members of the public of serious harm occasioned by his committing further specified offences. He had committed at least four previous specified offences.
24.
The judge observed that the probation officer, who had not been aware of the details of the offences for which he was sentenced in 1997 or of the Court of Appeal judgment, had reviewed her report and now concluded that he did present a serious risk of harm to females with whom he might commence a relationship and to members of the public in confrontational situations. He continued:
"I am thus satisfied that this is a case where the law obliges me to impose a sentence of imprisonment for public protection, not only for the protection of any partner with whom you might cohabit but police officers and members of the public foreseeably likely to be harmed by your reckless behaviour when you lose all self control. I add that this incident arose when, as far as I can see, this was the fourth victim of domestic violence who your behaviour has affected in this way."
25.
The proposed grounds of appeal which are advanced by Mr Taylor before us today are, first, that the judge erred in concluding that only imprisonment for public protection was appropriate having found that the applicant was dangerous and having failed to consider imposing an extended sentence or other lawful sentence. Secondly, he submits that the judge erred in considering that the applicant's record showed that he posed a significant risk of serious harm. His previous offences were repetitive offending at a relatively low level, none of which resulted in serious harm. This, combined with a complete lack of previous convictions for serious offences, demonstrated that the judge's assessment was wrong. Thirdly, he submits that the judge placed undue emphasis on the assessment of the probation officer who had mistakenly thought the judge had already decided the applicant was dangerous.
26.
We are totally unable to accept these submissions. The sentencing remarks do suggest that the finding of dangerousness must result in a term of imprisonment for public protection. Under the
Criminal Justice Act 2003
, as amended, the judge was not obliged to impose a term of imprisonment for public protection, an extended sentence was an option that was open to him. However, we consider that in this case a sentence of imprisonment for public protection was the only appropriate sentence. This man presents a clear danger to members of the public of serious harm occasioned by him of further specified offences. He has a tendency to use violence against woman, he has shown a total inability to control his temper, when thwarted, and a total inability to learn from experience.
27.
The second report, the addendum report, does appear to assume that the sentencing judge had already reached a conclusion on dangerousness. However, in that report, Miss Douglas, having reconsidered the matter, does come to the conclusion that he does present a serious risk of harm to others. The judge's sentencing remarks rely on the conclusion of Miss Douglas. The judge was entitled to rely on that. In any event, he was entitled to come to his own conclusion. There was ample material here to support that conclusion.
28.
We are in entire agreement with the single judge that the submission made in writing that the damage caused on this occasion was, "an unfortunate and unintentional by-product of the driving and attempts to evade the police rather than a deliberate attempt to destroy property" is, in the circumstances which I have outlined, simply untenable.
29.
In our judgment, the proposed grounds of appeal are unarguable. We refuse leave to appeal against sentence.
30.
Finally, we note that the record sheet in this case requires to be amended to show that the offence of which the applicant was convicted on Count 1 was, in fact, destroying property being reckless as to whether life was endanger.