R v Wayne John Simmonds

In a sentence appeal, a trial judge who also sentenced is entitled to assess the evidence and give weight to relevant factors. An appellate court should not interfere where the findings are properly supported and the sentence is not arguably excessive or wrong in principle. A conspiracy to rob may include a plan to inflict serious physical harm if necessary to obtain the goods, even where access is initially to be obtained by deception and the defendant did not expressly endorse every proposed method. Participation may be inferred from the whole evidence, including silence in the face of violent proposals and the defendant’s own reference to interrogation. Offending committed on licence may aggravate sentence without double punishment where recall consequences mean custodial time is not counted.

The applicant pleaded guilty to conspiracy to supply a class A drug and was convicted of conspiracy to rob after trial at the Crown Court at Manchester. On 12 November 2021 he was sentenced to 23 years’ imprisonment, comprising 15 years for conspiracy to rob and eight consecutive years for the drugs conspiracy.

The notice seeking leave to appeal against sentence was filed 163 days late. A single judge refused the application. The applicant renewed his application for an extension of time and argued that the sentence for conspiracy to rob was excessive because the judge had misunderstood the nature of the plan, his role, the intended violence, the aggravating effect of offending on licence and totality. A separate ground concerned credit for pre-trial custody under s 204 ZA(4) of the Criminal Justice Act 2003.

The court accepted that the applicant was not personally responsible for the delay, but held that the interests of justice ultimately turned on whether there were arguable grounds of appeal. It therefore considered the merits.

1. The general rule under s 204 ZA(4) of the Criminal Justice Act 2003 is that credit is not given for time spent in custody serving another sentence. A residual discretion exists, but the circumstances did not justify its exercise. The adjournment was a short case-management event in a multi-handed trial, and the applicant had chosen to contest guilt.
2. The sentencing judge had presided over the trial and was in an unrivalled position to assess the evidence. He gave full reasons and was entitled to make the findings he did and to attribute weight to the relevant sentencing factors. The appellate court found no arguable error of principle in that approach.
3. The court applied its earlier assessment in R v Boyle [2022] EWCA Crim 848. The applicant’s involvement was not confined to the recorded conversation on 7 May 2020. Evidence showed earlier discussions, and the conversation itself supported findings about the intended violence. Although the applicant did not expressly agree to every violent proposal, he did not object or disassociate himself from them. He himself referred to transferring members of the Davies family for interrogation. The judge was therefore entitled to find that the conspiracy contemplated serious physical harm, prolonged detention and other identified features, while treating the applicant as having somewhat lesser responsibility for the violence.
4. Treating offending committed on licence as aggravating did not amount to double punishment. The applicant’s recall meant that time spent awaiting trial did not count towards the sentence, although the matter affected totality. The sentence was severe but not arguably manifestly excessive. The renewed application was dismissed. The record was directed to be amended to include the victim surcharge order of £190.

• Court of Appeal (Criminal Division) The renewed application for an extension of time and leave to appeal against sentence was dismissed. The record was amended to include the victim surcharge order.
• Single judge The application for an extension of time and leave to appeal was refused.
• Crown Court at Manchester The applicant was convicted of conspiracy to rob on 3 August 2021 and sentenced on 12 November 2021 to 23 years’ imprisonment, comprising 15 years for conspiracy to rob and eight consecutive years for conspiracy to supply a class A drug.