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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Chowdhury, R. v [2013] EWCA Crim 943 (21 May 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/943.html Cite as: [2013] EWCA Crim 943

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21st May 2013

1. MR JUSTICE MACKAY: On 6th December 2012 in the Crown Court at Portsmouth, having heard evidence from prosecution and defence, His Honour Judge Price made a finding of fact that the appellant, who brings this appeal as of right, had failed to surrender to his bail without reasonable excuse. He sentenced him to 12 months' imprisonment. He purported to direct that the time served on remand should not count towards that sentence. That last direction was in the traditional phrase a "brutum fulmen" in view of the repeal of section 240 of the Criminal Justice Act 2003. It is argued that it has a relevance to this appeal as we will develop.
2. The facts were simply these. The appellant was charged with one count of harassment and two of threats to kill - the complainant being his wife.
3. There is no need to set out the particulars of offence. They are frankly and fully set out in paragraphs 7 and 8 of counsel's advice and grounds. But they were, if true, serious offences of matrimonial violence.
4. He was bailed and he failed to attend his trial. A warrant was issued for his arrest and he was at large for almost exactly 13 years, having relocated himself from the south coast to the Leeds area where he had gone to ground. Ironically he came to the attention of the police as a result of his own application for leave to remain in the United Kingdom.
5. The matter was restored to court. It became clear that the health of the wife had so deteriorated over the period of 13 years that she was not capable of giving coherent evidence. No evidence was offered and the charges were dismissed and the Bail Act offence was tried with the result we have set out.
6. It is argued that 12 months, being the maximum sentence available for a Bail Act offence treated as a contempt of court, was a manifestly excessive response. The guidelines on failure to surrender suggest a range of sentences and advise that the assessment of culpability requires consideration of the reason why the defendant failed to appear which can range from forgetfulness or fear of the outcome of the hearing, to a deliberate act. Where the failure is deliberate it will be relevant whether it was designed to disrupt the system to the defendant's advantage. That, in our judgment, was most certainly the case here.
7. The seriousness of the underlying offence, the guidelines suggest, should not affect the assessment of seriousness but the nature of that offence may affect the degree or likelihood of harm caused such as where it is a violent or sexual offence and an acquittal for that offence will not affect the seriousness of the failure to surrender.
8. The aggravating features, as we see it and as the judge saw it, were the length of the delay and disruption to the administration of justice (13 years) and the fact that this was a determined and in the event successful attempt to avoid the jurisdiction of the court and undermine the course of justice.
9. The guidelines suggest a sentencing range from a medium range community order to 40 weeks but quite rightly say that matters of aggravation may require a sentence outside that range. Realistically today, in his effective and well delivered submissions, Mr Seelig concedes that a departure from the guideline range may be justified in an appropriate case.
10. He seeks to argue that the strength of the case against him is irrelevant, basing himself on R v Clark [2000] 1 Cr App R(S) 224, which is, if it is authority for anything, authority for the proposition that a subsequent trial resulting in an acquittal after a failure to surrender does not entitle the defendant, who has not surrendered, to claim credit or some form of reduced sentence. To seek to derive from this case the opposite proposition that avoiding a strong case was not an aggravating feature does not, in our judgment, run. The guidelines do not preclude a sentence at the top end or limit indeed of the court's powers nor would they have power so to do.
11. Mr Seelig advances a further argument that the judge's ineffective attempt to order that time on remand should not be taken into account indicates that he had, if anything, a higher sentence in mind as the appropriate disposal for this offence. We are not so much concerned with what was in the judge's mind. He was evidently of a very unfavourable disposition towards the defendant, having heard what he considered his rather dishonest attempt to avoid liability and contest the hearing, unsuccessfully in the event. The question for us is whether, at the end of the day, a 12 month sentence, albeit the maximum available was a manifestly excessive disposal of this matter.
12. We consider this was an extreme case of its kind. No fair trial was possible. The underlying charge related to a serious matter and it is fair to say that the defendant's own conduct indicated he had little confidence in his ability to resist it on the merits of the case. He did not do himself the favour of admitting what he had done when that was obvious and therefore was entitled to no mitigation to reduce the sentence. The judge was, in our judgment, entitled to sentence as he did. We cannot describe the resulting sentence as manifestly excessive.
13. This appeal must therefore be dismissed.