Attorney General's Reference No 64 of 2004 [2004] EWCA Crim 2618

Case No 200402856/A1[2004] EWCA Crim 2618
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12th October 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS
MR JUSTICE BEAN
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 64 OF 2004
Computer Aided Transcript of the Stenograph Notes of
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MR R HORWELL appeared on behalf of the ATTORNEY GENERAL
MR P WRIGHT QC appeared on behalf of the OFFENDER
J U D G M E N T
[1]THE VICE PRESIDENT: The Solicitor-General for the Attorney-General seeks leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient. We grant leave. The offender was born in April 1963 so is 41 years of age.[2]Her trial was due to commence on 16th March 2004. She faced an indictment for murder. In relation to that she had pleaded not guilty at the plea and directions hearing. On 16th March she pleaded guilty to manslaughter on the ground of lack of intent and a written basis of plea was accepted. She had indicated, about a month before the trial, that she was prepared to plead guilty to manslaughter. On 23rd April, at Liverpool Crown Court, she was sentenced by Morland J to two-and-a-half years' imprisonment.[3]In summary the offender, when she was drunk, attacked a 68 year old man in his home. She threw a television set and other objects at him and she repeatedly hit him with a piece of wood in the area of the abdomen. The deceased had multiple injuries, not all of which were caused by the offender, but it seems highly likely that she caused the abdominal injuries from which he died.[4]The victim, Mr Hyde, was an alcoholic. For several years he had lived at a flat in Preston New Road, Blackburn. There were other flats in the same building and most of the occupants had a serious drink problem.[5]On 11th June 2003 there were two separate incidents in his flat. The first took place before 10.15 pm, when the police and ambulance service attended in response to a report that a man had been assaulted. They went into Mr Hyde's flat and found him lying across a mattress which was half on the floor and half on the bed. He was semiconscious and very drunk. An officer tried to speak to him but he gave an abusive reply. He had signs of dried blood around his nostrils and his nose appeared somewhat swollen. He did not seem to have any other injury but there was no thorough examination carried out because of his general attitude and his refusal to accept medical help.[6]It was the case for the Crown that, by this time, Mr Hyde had been assaulted by two men called Hartley and Burns, who had attempted to steal money from him. That assault was seen by two witnesses, a Mr McNally, who described Mr Hyde being shaken and stamped on the thigh (without any great force), and a Mr Whittle, who described Mr Hyde as being shaken violently and thrown on the bed over a period of 10 to 20 minutes. Both Hartley and Burns had slapped Mr Hyde on the face but neither of the witnesses saw any punches or kicks. In due course, both Hartley and Burns pleaded guilty to assault with intent to rob and were sentenced respectively to 3 and 2 years' imprisonment.[7]Within an hour or two of that first incident the offender arrived at Mr Hyde's flat looking for her daughter, who she thought might be with Hartley. The only witness as to what then occurred was Mr McNally. The Crown invited the court to approach his evidence with caution because he, together with others, had consumed three bottles of sherry in the course of the evening. Mr McNally described the offender as being 'steaming drunk'. The moment she came into the flat she said to Mr Hyde:
"You, you little bastard, you mess with kids. I don't like people like that. My kids have been messed about with."
Many years previously Mr Hyde had been convicted of offences of unlawful sexual intercourse and attempted sexual intercourse and, also, some 15 or more years earlier, he had been convicted of indecent assault on a 10 year old girl, for which he was sentenced to a short period of imprisonment.[8]The offender was in a rage. She picked up the television and threw it at Mr Hyde and it hit him on the lower part of the face and the upper chest. He looked as though that had hurt him. He fell backwards to the floor and Mr McNally thought he may have been unconscious. The offender then picked up a piece of wood (used as a door prop) and brought it down, jagged end lowermost, in a stabbing motion into Mr Hyde's stomach as he lay on the floor. According to Mr McNally, she did that five or six times, with considerable force, looking mad with rage. She then pulled an electrical clock and clock radio from their sockets and threw them at Mr Hyde: the first hit him on the head, the second on the chest. The offender also hit Mr Hyde on the back with the piece of wood. She then took a mirror and a clock and walked off. She later showed these to a friend and said that they had come from what she described as "a paedophile's house".[9]Soon afterwards, Mr McNally fell asleep. The police were not called until the following morning. They arrived just after 8 o'clock. Mr Hyde by that time was dead. His body was on the floor of the flat. There were various pieces of broken wood and splinters near the body and some of them were bloodstained.[10]A postmortem examination revealed multiple lacerations to the left arm, some of which contained splinters of wood, consistent with an assault by the piece of wood found at the scene, bruises to the knuckles which could have been offensive or defensive, and abrasions on the front of the left hipbone which were typical of injuries caused by blows from a shod foot. There was extensive bruising on the lower abdomen. Internal examination revealed three large lacerations in the small bowel mesentery which had resulted in more than a litre of blood entering the abdominal cavity. It would have needed a significant degree of force to cause those lacerations, which are injuries of a kind usually found in road traffic accidents or falls from a height. There were also fractures of the deceased's hyoid bone at the front of the neck. The conclusion reached was that the deceased had been subjected to a sustained and forceful assault causing the injuries which we have described, the most severe of which were to the abdomen. It is also of significance that those lacerations would have bled swiftly and would have caused very severe abdominal pain. In consequence, it was the pathologist's view that it was highly unlikely that those abdominal injuries had been caused during the first of the two incidents. It will be recalled that there was a substantial time lag between these two incidents.[11]The offender was arrested on 12th June. She denied being in Preston New Road the previous day. In interview, however, she admitted visiting Mr Hyde's flat but claimed to have found him on the floor and to have done no more than make him comfortable by placing a cushion under his head. She denied assaulting him.[12]On behalf of the Solicitor-General, Mr Horwell draws attention to what he submits are five aggravating features: first, the attack was sustained and involved the use of considerable force; secondly, a weapon was used; thirdly, the victim was 68 years of age, vulnerable and defenceless; fourthly, the attack was unprovoked; and fifthly, the offender had left the victim without seeking any medical help.[13]Mr Horwell draws attention to four mitigating features: first, the plea of guilty; secondly, effectively the offender is of good character, having one spent previous conviction of assaulting the police for which she was fined some years ago; thirdly, she is responsible for the care of three children who are aged 16, 8 and 4, and fourthly, that she has shown genuine remorse.[14]There are a number of authorities referred to in the written Reference. It suffices, having regard to a concession made by Mr Wright QC, to which in a moment we shall come, to refer only to one of these, Attorney-General's References Nos 19, 20 and 21 of 2001 [2002] 1 Cr App R(S) 136 where, in the course of giving the judgment of the Court, Kay LJ at page 145, paragraph 42 said:
"As in the other settings in which death may result to which we have referred, this public concern and the need for deterrence must be reflected in sentences passed by the court. This inevitably will mean longer sentences than might have been considered appropriate some years ago in a different climate of opinion and concern."
[15]The submission that is made by Mr Horwell is that the sentence was unduly lenient. It failed to mark the gravity of the offence, the aggravating features, the need for punishment and public concern about the needless loss of life.[16]On behalf of the offender Mr Wright QC accepts that the sentence was lenient but he submits that it was not unduly lenient and, even if it were, he invites the Court to exercise its discretion not to interfere with the sentence which was passed. He stresses that the judge was highly experienced and he had, Mr Wright submits, regard to all the facts, including the initial earlier incident of violence, the remorse shown by the offender and the other circumstances to which we have referred. This, he points out, is the first custodial sentence which the offender has endured and it has, understandably, had a significant effect both upon her and upon her family.[17]So far as the offender herself is concerned, her present earliest date of release is 10th July 2005. The possibility of her offending again in a similar fashion is very small indeed. She has, during her time in prison, achieved the highest status and the most privileges which can be achieved. She has engaged in a variety of courses, including thinking skills, anger management, alcohol control and computer skills.[18]Mr Wright draws attention to the unhappy history of the offender, as set out in the psychiatrist report which was before the learned sentencing judge, to which it is unnecessary to refer in detail. At the time of these events he had what Mr Wright described as a fragile current relationship with a man in loco parentis to her children and it was contemplated that he would look after the children with assistance from the social services.[19]Mr Wright accepted, properly, the proposition which was put to him in the course of his submissions that, if the offender had not been a woman, with the mitigation in her favour arising, in particular, from her family circumstances, the least sentence that could properly have been passed in the court below would have been 5 years and it would probably have been 6 years' imprisonment.[20]In our judgment, taking into account the particular circumstances of mitigation in relation to the offender, we would have expected, on a plea of guilty in the court below, a sentence of the order of four-and-a-half years' imprisonment. It follows that the sentence of two-and-a-half years was unduly lenient. It is necessary for this Court, if it interferes with the sentence which was passed, to take into account double jeopardy, that is to say that the offender is being sentenced a second time. It is also appropriate to take into account in the present case the obvious progress which the offender has sought to make while she has been in prison.[21]We bear in mind, above all, in relation to this offender, the investigation arising from the family circumstances. That said, the learned judge, as it seems to us, was unduly influenced by the mitigation in relation to this offender and paid too little regard to the gravity of this offence.[22]In the light of all those circumstances, we quash the sentence of two-and-a-half years which was imposed by the learned judge and we impose in its place a sentence of three-and-a-half years' imprisonment.