Attorney General's Reference No 28 of 2004 [2004] EWCA Crim 1440

Case No 200401426/A1[2004] EWCA Crim 1440
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 20th May 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE GRIGSON
MR JUSTICE ANDREW SMITH
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 28 OF 2004
Computer Aided Transcript of the Stenograph Notes of
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MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL
MR K TALBOT appeared on behalf of the OFFENDER
J U D G M E N T
[1]THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly. We grant leave.[2]The offender was born in May 1986 and will be 18 years of age next week. On 17th December 2003 notice of additional evidence having been served on the day before, in relation to glass fragments, the offender pleaded guilty to wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. He was sentenced on 11th February 2004 by Her Honour Judge Badley, at Preston Crown Court, to an 18 month detention and training order.[3]In summary, the offence occurred late at night, in the street, outside a nightclub, the offender being very drunk. He and another man approached a friend of the victim, the offender being in an agitated condition. The victim tried to intervene in an argument between the offender and the victim's friend. The offender thereupon produced a bottle with which he hit the victim on the head and the bottle then broke. Thereupon, holding the victim's arm, the offender brought the now broken bottle down in the victim's face, six or seven times. Permanent and disfiguring scarring resulted.[4]In a little more detail, on 6th September 2003 the victim, a 23 year old man called Gareth Turner, was socialising that evening with his female cousin and a male friend called Liam Johnson. By a little before 2 o'clock in the early hours of the morning of 7th September, Johnson, in particular, was the worse for wear and the three of them were standing outside a nightclub. The two youths, of whom the then 17 year old offender was one, approached. There was an exchange of words. The offender, in drink and agitation, frightened, in particular, the female in the victim's party. She screamed and ran back to the club for help. From about 10 metres away she saw part of the incident which followed.[5]The victim tried to position himself between his friend Johnson and the offender in order to calm the situation down. But, as we have said, the offender produced a bottle and struck the victim. The bottle broke. The offender then took hold of the victim's arm, which he was holding out to keep the offender away, and held it while he brought the broken bottle down into the victim's face at least six times. The other youth who was with the offender punched Johnson in addition.[6]Police officers arrived. The offender ran off. He was chased and caught. His clothing was heavily bloodstained. He said on arrest:
"It was not my fault, I've done fuck all. That man tried to grab me."
In interview he maintained that he had not started the fight and he denied using the bottle.[7]The victim was bleeding heavily. He was taken to hospital. He had lacerations to the left temporal area, left eyebrow, left ear, chin, right arm and hand. Glass had been left in the wound to his eyebrow. The wounds required twenty stitches and gluing, and he came back to hospital two days later with post concussion syndrome, having been suffering from headaches and vomiting. Part of the wound to his scalp did not heal well and an area of skin measuring about five by two-and-a-half centimetres died. He was referred for plastic surgery.[8]In the victim impact statement which was before the sentencing judge, the victim set out the lasting effects of the attack. He has visible scars to his head and face. His hair has not grown back over the wound. On the scalp he has a lump on the site of the injury to his hand and he is very self conscious about his scarring. He has lost social confidence and is nervous going out on his own. He does not sleep properly and wonders why he was targeted.[9]The offender has a substantial record of appearances before the courts on previous occasions a total of 15 appearances, for over 30 offences, since June 1998. His first appearance was for theft, committed on bail. Thereafter he acquired convictions for common assault, cruelty to animals, arson being reckless life would be endangered, theft, handling, possession of an offensive weapon, assault occasioning actual bodily harm, offences contrary to sections 4 and 6 of the Public Order Act 1986, affray, criminal damage, theft of motor vehicles and driving offences. He has variously been dealt with by discharges, fine, being placed on supervision, attendance centre orders, a detention and training order for 6 months and a community punishment and rehabilitation order.[10]On behalf of the Attorney-General Miss Cheema draws attention to a number of aggravating features. First, a bottle was used as a weapon. Secondly, the attack was unprovoked and on a stranger, in the street, late at night. Thirdly, the victim had intervened to try to stop violence. Fourthly, the offender was acting with another man. Fifthly, there were deliberate and repeated blows with a broken bottle, to the face and head. Next, there was little remorse or acknowledgment of guilt until the overwhelming evidence was served. Next, such offences, in town centres, late at night are prevalent and, finally, the offender's bad record.[11]Miss Cheema draws attention to five mitigating features: first, the plea of guilty for which the sentencing judge allowed full credit; secondly, the youth of the offender, he being, as we have said, only 17 at the time of the offence; thirdly, no serious permanent physical disability resulted to the victim; fourthly, some remorse was ultimately demonstrated; and, fifthly, the difficult personal history and background which the offender has, having lost, first, his father at the age of 3 and then his mother to a psychiatric hospital, so he was, for a time, brought up by an aunt.[12]Miss Cheema referred to two authorities Attorney-General's Reference Nos 59, 60 and 63 of 1998 [1999] 2 Cr App R(S) 128. In that case this Court, in which the then Lord Chief Justice, Lord Bingham, presided dealt with three young offenders, the first of whom had no violence in his record, the second of whom had a single previous conviction for robbery some years previously, and the third of whom had a previous record of only minor offences.[13]In the course of giving judgment, Lord Bingham at page 131 said this:
"When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra- judicially the punishment that the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him."
Miss Cheema also drew attention to Attorney-General's Reference No 121 of 2002 [2003] EWCA Crim 684, in which Mantell LJ gave the judgment of the Court in relation to a 16 year old who, having pleaded guilty to wounding with intent, was placed on probation. He was a young man of good character. The Court indicated, in paragraph 15 of the judgment, that a sentence of the order of 4 years' detention in the court below would not have been appealable and the least proper appropriate sentence would have been 3 years' detention. The Court went on to impose a detention and training order of 18 months because, among other reasons, that offender was being sent to custody after a non-custodial sentence had been passed upon him. It is to be noted from the description of the injuries in paragraph 5 of that judgment that the target area for the offender had not been the face or head of the victim.[14]The submission which Miss Cheema makes is that the sentence passed by the learned judge in this case failed adequately to mark the gravity of this offence. She gave too much credit for the mitigating features arising, in particular, from the offender's difficult background. But the sentence she passed would fail to act as a deterrent to others and adequately to reflect the public's proper concern about offences of this kind.[15]On behalf of the offender, Mr Talbot conceded, at the outset of submissions, that the sentence passed by the learned judge was unduly lenient. But he sought by his submissions to persuade the Court either not to interfere with the sentence passed, or to make such short additional order by way of sentence that section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 would not be invoked. Mr Talbot dealt, at some length, with the circumstances in which the offender came to plead guilty after the additional evidence had been served upon him. He submitted that a discount for that plea of at least 25% ought to have been given. Mr Talbot described this young man's unfortunate and unhappy upbringing. Mr Talbot stressed that, since he has been in custody, the offender has acquitted himself well, in particular he has completed one course and is about to attend an anger management course. Mr Talbot stresses that the consequences for the victim could have been a good deal worse. He points out, in relation to the offender's antecedents that, prior to the present sentence, the offender had not been deprived of his liberty for longer than 6 months. Mr Talbot also stressed that, as and when the offender emerges from custody, he can anticipate support from his family.[16]Mr Talbot relies on the element of double jeopardy which is a feature of the second sentencing process in all Attorney-General's References. He made the submission that, following a trial for this offence, the sentence in the court below might properly have been 4 years. On a plea it might properly have been 3 years or somewhat less.[17]To all of those matters we have regard. It seems to us that the learned sentencing judge was unduly influenced by the personal circumstances of the offender and paid too little regard to the gravity of the offender's conduct in repeatedly using a broken bottle to the face of an entirely innocent victim in the street, at night.[18]We would have expected, in the court below, even on a plea of guilty, taking into account all the other circumstances of this case, to which we have referred, including the youth of this offender and his record, a sentence of 4 years' detention under section 91.[19]Having regard to the element of double jeopardy, the sentence which we pass in substitution for the 18 month detention and training order passed by the learned judge is one of 3 years detention under section 91.