R. v Bloor (Roderick)

	No Substantial Judicial Treatment

Court
Court of Appeal (Criminal Division)
 
2020 WL 01290364
 
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TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE.
 
IN THE COURT OF APPEAL
 
CRIMINAL DIVISION
 
[2020] EWCA Crim 402

No. 201902758 A3

	

Royal Courts of Justice
 
Thursday, 5 March 2020

Before:

LORD JUSTICE HADDON-CAVE
 
MR JUSTICE EDIS
 
MR JUSTICE JOHNSON

 
 
REGINA
 
V
 
RODERICK BLOOR
 
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MR D. HUGHES appeared on behalf of the Appellant.
 
MS C. BELL appeared on behalf of the Respondent
 
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JUDGMENT
 
MR JUSTICE JOHNSON:
 
 	1.   This appeal concerns the amount of a fine imposed for failing to comply with an enforcement notice to take down a building extension for which planning permission had been refused. The appellant, Roderick Bloor, contends that a fine of £15,000 that was imposed on him by HHJ Kelson QC at the Sheffield Crown Court for that offence was manifestly excessive.
The facts
 
 	2.   In 2016 the appellant purchased an endofterrace house in the village of Hexthorpe on the outskirts of Doncaster in South Yorkshire. It had a ground and firstfloor extension. The firstfloor extension had been built without planning permission. When the authorities contacted the appellant, he made an application for planning approval. That was refused on 3 March 2017. It was refused because the extension was of an unsuitable design, which was not in keeping with the row of houses.
 	3.   The appellant did not remove the extension. On 28 April 2017 an enforcement notice was served requiring him to remove the extension and to return the house to its former condition. The appellant appealed against that decision, but on 5 July 2017 the appeal was dismissed. He was required to carry out the works by early October. He did not do so. He thereby committed an offence contrary to s.179(1) of the Town and Country Planning Act 1990. It was only in the following February that the appellant on his account started to address the work that was required. He did not complete the work until June 2019, some 20 months after he should have done.
 	4.   The appellant had initially been incorrectly charged with an offence under a different provision of the legislation. He did not indicate that he would plead guilty to any offence and he elected to be tried in the Crown Court. The error in choice of charge was noted at a hearing on 19 June 2019. The indictment was amended. A week later, on 26 June, he pleaded guilty to the offence. He was sentenced, as we have said, by HHJ Kelson QC at the Sheffield Crown Court.
 	5.   In the course of setting out the facts for the judge for the purpose of sentence, counsel for the prosecutor correctly said that there was no statutory maximum on the fine that could be imposed. He submitted that the appropriate figure was £10,000. The judge inquired as to the basis for that figure. The response was that that was what the local planning authority thought was appropriate given the period of the breach.
 	6.   In sentencing the appellant, the judge referred to photographs of the extension and to findings that had been made by the planning inspectorate when refusing planning approval. Those findings were to the effect that the extension materially detracted from the character and appearance of the area and had an adverse impact on the lighting conditions on those in the neighbouring property. That was because of the proximity of the side wall of the extension to the neighbouring property which impacted on light and on the outlook. The extension had an oppressive and overbearing appearance when viewed from that property. The inspectorate had found that there was significant harm to the living conditions of the occupants of that property. The judge also referred to the length of time for which the appellant was in breach of the notice, amounting to one year and eight months.
 	7.   He referred to the absence of evidence from the appellant, including as to his means and the paucity of evidence as to any rental income from the property, it having been the appellant’s case that the property was let out, but that the tenants had left a good deal of unpaid rent. The judge considered that the gravamen of the offence was the cavalier way in which the appellant had simply ignored the enforcement notice for a very, very long period of time. He described that as flagrant and the period of time as highly significant. Ultimately, he considered that an appropriate starting point was £20,000 and he made a 25 per cent reduction to arrive at a fine of £15,000.
 	8.   Mr Dermot Hughes who appears on the behalf of the appellant advances three grounds of appeal. First, he says that the judge erred in adopting a starting point which is twice the level suggested by the prosecution. Second, that the judge did not have regard to the fact that the offence was not motivated by financial gain. Third, that the judge failed to afford adequate credit in respect of the plea of guilty. Those grounds are fully set out in writing and have been developed orally before us by Mr Hughes. He argued that the £10,000 suggested by the prosecutor was itself too high and that the starting point of double that was manifestly excessive. We are very grateful to him for his clear and helpful submissions.
 	9.   Ms Bell for the prosecuting authority has drawn our attention to aspects of the sentencing remarks where the judge dealt with the issue of financial gain, or absence of it, and to the fact that the judge proceeded on the basis of the defendant’s case at its highest without placing any weight on the issue of financial gain.
Discussion and decision
 
 	10.   The judge was required to set a sentence within his statutory powers. Here the statutory maximum was an unlimited fine and there was no statutory minimum. He was also required to follow any offencespecific sentencing guideline from the Sentencing Council, but there is no guideline for this offence. He was therefore required to follow the approach required by the Sentencing Council’s General Guideline on overarching principles. That required that he first had regard to the statutory maximum and, if appropriate, minimum sentence when reaching a provisional sentence: see step 1 of that Guideline. In practise here that simply meant that the appropriate sentence would be a fine; but the breadth of statutory powers did not provide assistance in setting the level of the fine.
 	11.   Next, the Guideline required that the judge have regard to sentencing judgments of this court. He did so and, in particular, he had regard to the judgment of R v Mohammed Kamal Ahmed [2014] EWCA Crim 1270 . He also referred to “Banks on Sentence” and to a textbook on planning law. He was unable to derive great assistance from these sources as to the level of fine which should be imposed, save in so far as they illuminated general sentencing principles, and, in the case of Ahmed, applied them to this offence. It has not been suggested that the judge overlooked any relevant sentencing judgment of this court that might have been of assistance. Next, the judge was required to have regard to any definitive sentencing guidelines for analogous offences, but it is not suggested that there were guidelines for any analogous offence. So, that potential source did not provide assistance.
 	12.   In determining the level of fine to be imposed, the judge was required by s.179(4) of the Town and Country Planning Act and also by the Sentencing Council’s Guideline on overarching principle to have regard to any financial benefit which had accrued. Where there is evidence of financial benefit then that will plainly be a material factor. In such cases, the benefit that has been achieved may provide a convenient starting point in assessing the level of fine, subject always to securing the objectives of punishment and deterrence.
 	13.   An example of that in practise is the decision of this court in Ahmed. There the sentencing judge had focused on the length of time over which the breach had continued with a consequent financial gain in respect of rental income. He found that the period of the breach was one year in respect of each of three different properties. He arrived at a starting point for the fine of £25,000 by reference to rental income, before then reducing the fine to take account of the plea. This court saw nothing wrong with that process. Here the judge did have regard to the question of financial benefit. The appellant asserted that he had not received a benefit and there was precious little evidence on the issue. Ultimately therefore the financial benefit question was not in itself of utility in reaching a provisional sentence.
 	14.   In assessing the level of fine, the judge was required by the Sentencing Guideline on overarching principles and by s.164 of the Criminal Justice Act 2003 to take account of the financial circumstances of the appellant, but he had not been provided with any reliable information and there was no suggestion that the appellant would be unable to pay any particular level of fine. The guideline on overarching principles says this:
”Obtaining financial information.
 
It is for the offender to disclose to the court such data relevant to their financial position as will enable it to assess what they can reasonably afford to pay ... In the absence of such disclosure or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case. In setting a fine the court may conclude that the offender is able to pay any fine imposed unless the offender has supplied financial information to the contrary.”
 
 	15.   For all these reasons, the judge was unassisted by guidance on the level of fine that should be passed. He had a broad sentencing canvass within the general principles set by the statutory purposes of sentencing under s.142 of the Criminal Justice Act 2003 and his obligation to assess the seriousness of the offence by reference to the appellant’s culpability and the harm that he had caused: see s.143(1) one of the 2003 Act and step 1 of the Sentencing Council’s Guideline on overarching principles. That is precisely what the judge did.
 	16.   In terms of culpability, he considered this to be a flagrant case where the appellant had taken a cavalier approach of simply ignoring the planning notice for, as he put it, “a very, very, very long period of time”. In terms of harm, he referred to the impact on the neighbours over that period of time and the planning harm that accrued from a building that was not in keeping with the character and appearance of the area. These were all matters that he was required to take into account and we do not consider that there was any error in his approach.
 	17.   The judge was then required to take account of any aggravating or mitigating features. It was not, however, suggested that there were any additional features to be taken into account by way of aggravation or mitigation beyond those relevant to culpability and harm that the judge had already addressed. Ultimately, put broadly as it is by the overarching guideline, the judge was required to set a fine that would “meet in a fair and proportionate way the objectives of punishment, deterrence and the removal gain derived through the commission of the offence.”
 	18.   Against that background, we consider the grounds of appeal. The first ground concerns the starting point. The judge considered that the appropriate starting point was £20,000. That figure was reached, as we have said, in the absence of any tightly drawn constraint and by reference to a judicial assessment of the seriousness of the offence taking account of the appellant’s culpability and the harm that had been caused. We unhesitatingly reject the submission that the starting point was wrong in principle or manifestly excessive. It was an exercise of judicial assessment that took account of all relevant factors and was not influenced by anything that was not relevant. It seems to us to be well within the broad band of outcome that would meet in a fair and proportionate way the objectives of punishment and deterrence in this case.
 	19.   We stress that it in no way sets a tariff for other cases, just as the decision in Ahmed did not do so. However, it bears comfortable comparison with the fine upheld by this court in Ahmed. That fine was imposed by reference to the financial benefit that had accrued in that case, which is not a factor here. However, in upholding a starting point in that case of a fine in excess of £25,000 this court did not limit its consideration to the question of financial benefit. Wyn Williams J said this at para.25:
”We observe ... that the financial gain to the applicant is not to be considered the only relevant factor in determining appropriate fines in cases of this sort. It is clearly a factor that must be taken into account, the statute says so, but there are other important factors, including, for example, the nature of the breach of planning control. In this case, in our judgment, the breach was flagrant and it continued for a significant period of time. In our judgment, the overall fine imposed in this case is not manifestly excessive on any view.”
 
 	20.   So too here. Indeed, the appellant was fortunate that the judge did not chose a higher starting point. The fact that the prosecutor had suggested a fine of £10,000 is entirely irrelevant. The view of the prosecutor as to the level of fine did not in any way fetter the judge. He had no obligation to follow it unless he happened independently to reach the same view, and he had no obligation to give reasons for reaching a different assessment so long as he sufficiently explained the assessment he did reach, as indeed he did.
 	21.   The second ground of appeal concerns the fact that the offence was not motivated by financial gain. The judge did, as we have said, consider the question of financial benefit. He did not conclude that there had been any benefit or indeed any intension to secure a financial benefit. He did not do so even though the appellant would have avoided a significant financial outlay if he had succeeded in avoiding his obligation to comply with the enforcement notice. Again, the appellant was, if anything, fortunate in the approach taken by the judge. In assessing the appellant’s culpability, the judge referred to the flagrancy of the breach, the period over which it was perpetrated and the appellant’s cavalier approach. He did not in any way suggest that the appellant had sought to secure a financial benefit. Accordingly, we reject the complaint advance under Ground two.
 	22.   The final ground of appeal concerns the question of credit. Here the plea was entered as soon as the indictment was amended to charge the correct offence. In that sense, the plea was entered at the first available opportunity, but it was also entered after the case had reached the Crown Court and there had been no earlier indication that the appellant would plead guilty to this offence. Paragraph D2 of the Sentencing Council’s Guidelines on reduction in sentence for a guilty plea states that the maximum level of reduction in such a case is onequarter. That is subject to the exceptions in section F of the Guidelines. Paragraph F3 says this:
”F3. Offender convicted of a lesser or different offence.
 
If an offender is convicted of a lesser or different offence from that originally charged and has earlier made an unequivocal indication of a guilty plea to this lesser or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication of plea to the lesser or different offence was made, taking into account any other of these exceptions that apply.”
 
 	23.   Here, however, the appellant had not made an unequivocal indication of a guilty plea to this offence. The exception in s.F3 does not apply. The judge was therefore entitled to apply a reduction of onequarter.
 	24.   There is one flaw in the otherwise flawless sentence that was imposed by Judge Kelson. He did not impose a victim surcharge order. Such an order was required by statute: see s.161A of the Criminal Justice Act 2003. However, we may not deal with the appellant more severely than the Crown Court judge: see s.11(3) of the Criminal Appeals Act 1968. Accordingly, we do not seek to correct that flaw now.
 	25.   For all those reasons, the fine of £15,000 that was imposed for failing to comply with the enforcement notice was not wrong in principle or manifestly excessive. We therefore dismiss the appeal.
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