Attorney General's Reference No 40 of 2004 [2004] EWCA Crim 2112

Case No 2004/2075/A7[2004] EWCA Crim 2112
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 16 July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE GRAY
SIR JOHN ALLIOTT
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 40 OF 2004
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MR H DAVIES appeared on behalf of the ATTORNEY GENERAL
MR P EVANS appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE LATHAM:

[1]In this case the Attorney General seeks leave to refer to this court a sentence of two years' imprisonment which was imposed on this offender on 9th March 2004 for an offence of wounding with intent to cause grievous bodily harm.[2]The circumstances of offence were that the offender had been travelling on a train, together with his girlfriend, and also it would appear on the train were the victim, Nicholas Wright, and his half-brother, Spencer Bryan, who had both had far too much to drink and were behaving in a thoroughly provocative manner. The evidence before the court was that the elder of the two, that is the half-brother of the victim, was aggressive when in drink and it would appear that that is how he was behaving that day. There is no doubt that they aggravated the offender. The fact unhappily is that despite pleas from his girlfriend not to be riled by the aggravation that he was receiving, the offender became sufficiently angry to go into a hardware shop and ask the owner whether he had any hammers, but then chose a 1.5 pound felling axe for which he paid £3.99 and left.[3]What then happened was that he went out towards the victim and his half-brother. There was a confrontation. He struck one blow to the half-brother which caught him on the mouth, and then raised his arm and hit the victim, one blow on the right-hand side of the face with the blade of the axe. That resulted in a horrific injury in the sense that it effectively laid open the victim's cheek. Indeed one of the witnesses described the sight of the injury causing such shock that she physically could not move. A passing witness was a staff nurse who said that the injury was one of the worst injuries that she had seen. Fortunately, however, it was mainly soft tissue injury, although there was unhappily damage to the temporal branch of the facial nerve which was severed and has not recovered. The consequence is some permanent impairment of movement of the right side of the victim's face.[4]It is in those circumstances that the Attorney General submits that the sentence of two years' imprisonment wholly failed to take account of the important features of this offence which were that it was a premeditated retributive attack, there was a deliberate purchasing of the weapon, which was an axe, and that the attack was pressed home despite the repeated pleas from his girlfriend to stop. Naturally the Attorney General points to the gravity of the injuries that have been sustained.[5]He has referred us to three particular authorities: Attorney General Reference No 24 of 1992 (1994) 15 Cr.App.R (S) 227; Attorney General Reference No 25 of 2002 [2003] 1 Cr.App.R (S) 28; and Attorney General Reference No 68 of 2002 [2003] 1 Cr.App.R (S) 94. From those cases it is submitted on his behalf that it is clear that for this sort of offence the starting point should be a sentence of five years' imprisonment after a plea of not guilty.[6]There is no doubt that the judge in the present case was well aware of the fact that this was a case which prima facie justified a severe sentence of imprisonment. That is clear from his sentencing remarks. The way in which the judge concluded that he should deal with the case was clearly affected by four matters in particular. Before him was positive evidence, as there is before us, of good character, showing that the offender is normally a perfectly honest law-abiding young man and the offence was wholly out of character. Secondly, and reflecting those expressions of support by the witnesses who had been prepared to write in his favour, was the assessment of the probation officer which was that he did not pose any significant risk of reoffending. Thirdly, the judge was prepared to take into consideration his plea of guilty, although it has to be said that that plea was not entered until the trial had all but commenced. It is apparent that the judge also took into account the fact that bearing in mind the conclusions as to the risk of reoffending, it was not necessary in the public interest to pass a sentence which would effectively result in his spending longer than was necessary in the public interest in already crowded prisons.[7]Perhaps as important as those factors was the fact that the judge had undoubtedly had an opportunity to read the background material which gave a flavour of the behaviour of the victim and his half-brother. He described it in these terms:
"It is quite obvious that you got a lot of aggravation and grief from two drunken young men on an underground train which continued as you both left the train at the same station, but that does not begin to excuse your behaviour in then going into a shop, arming yourself by purchasing an axe and then attacking one of them in the street so that he suffered very serious injuries to his face by the axe being swung at and connecting with his face."
In those circumstances, on behalf of the offender Mr Evans says that this court can take the view that albeit undoubtedly a lenient sentence for the reasons expressed by the judge, this is not an unduly lenient sentence so as to justify interference by this court. The cases to which the Attorney General has referred, he submits, all have features which are not present in the present case. In the first of the references that was a premeditated attack on an elderly frail couple, aggravated further by the fact that the perpetrator himself was a young man of good character whom the offender had taken along for the purposes of carrying out the attack. So far as the other two cases were concerned, they were both wholly unprovoked attacks. In the first a glassing and in the second the repeated use of a hammer.[8]We have considered with care the submissions made by both counsel. We accept the submission of the Attorney General that for this offence after a plea of not guilty the starting point would have been a sentence of five years' imprisonment. However, we consider that the judge was entitled to give credit to this offender for the matters that he did. Those matters are reinforced by further material before this court relating to his behaviour in prison which accords entirely with the assessment both of those who wrote to the court and whose letters were considered by the judge and the assessment of the probation officer.[9]It seems to us that in view in particular of this young man's good character, he is now 23, taken together with the matters to which we have referred, the judge was entitled to take a merciful course. There must always be room in a sentencing exercise for a judge to consider whether it is really necessary to follow in a mechanistic way the guidance given by this court which is merely general guidance as to the appropriate lengths of sentence which has to be tailored to a particular case. When we take into account in addition the fact that this court would in any event make a further reduction from any figure which would be appropriate to reflect double jeopardy, we consider that it would be inappropriate for us to interfere with this sentence, merciful though it is.[10]To reflect the fact however that it clearly is a lenient sentence which needed to be considered with some care, we give leave to the Attorney General to refer but we refuse the application.