Attorney General's Reference No. 19 OF 2006 [2006] EWCA Crim 1160

Case No 200600821/A9[2006] EWCA Crim 1160
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 10th April 2006
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE LEVESON
MR JUSTICE FULFORD
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 19 OF 2006
(ALAN HOYLE)
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MISS Z JOHNSON appeared on behalf of the ATTORNEY GENERAL
MR C RANKIN 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 1988 Act, to refer a sentence said to be unduly lenient. We grant leave.[2]The offender is 22 years of age having been born on 10th February 1984. On 8th February 2005 he pleaded not guilty at a plea and directions hearing, as also did his co-accused, Daniel Reynolds. The trial was set for May but was then adjourned because a significant witness failed to attend court. A second trial date was fixed and then adjourned because the co-accused had absconded.[3]On 3rd October 2005, on the third trial date, the co-accused, Reynolds, pleaded guilty to robbery and assault occasioning actual bodily harm and he gave evidence during the trial of the offender. The jury failed to agree and were discharged. A retrial began on 18th January 2006, and again, Reynolds gave evidence for the Crown. The offender was convicted on this second trial on 20th January 2006. He sentenced on that date by His Honour Judge Lever, at Manchester Crown Court, to 3 years' imprisonment for robbery on count 1 and 4 years concurrently for wounding with intent on count 2.[4]In summary, the offender and co-accused entered the ground floor room in a hostel occupied by the victim. The victim was visibly vulnerable; he walked with a stick. They demanded money. When the victim refused, the offender produced a knife and threatened the victim with it. Thereupon the victim was punched and kicked as he sat on his bed.[5]The co-accused searched the room for items worth stealing and, while that was occurring, the offender repeatedly stabbed the victim in various parts of his body. As it turned out, the injuries were superficial. The offender and the co-accused left. The victim was taken to hospital.[6]In a little more detail, the victim was a Mr Clynes, who was 44 years old. He walked with a stick and had other disabilities. He had his own room in the hostel, in Oldham, where he had been living for about 18 months.[7]On 18th November 2004, at about 9.30 in the evening, he was watching television. The offender and co-accused barged into the room and asked for a light. Mr Clynes gave them a light. The two men made small talk. After four or five minutes, Mr Clynes said that he was going to bed and asked them to leave. They did. Mr Clynes was still wake and sitting on his bed when, about quarter of an hour later, the two men returned. Again they walked straight in without invitation and Reynolds said:
"I want some fucking money"
. Mr Clynes refused. Mr Reynolds began to search his pockets and punched him in the face. The offender produced a knife and held it to Mr Clynes' face, pointing it to each side of his mouth and saying:
"I'm going to cut you from ear to ear to give you a permanent smile."
Reynolds and the offender both punched and kicked Mr Clynes in the face and locked the bedroom door.[8]The offender told Reynolds to search the room for items to steal. Whilst he was doing that, the offender stabbed Mr Clynes in his right arm, both legs, left foot and right hand. In all there were 29 stab wounds. Mr Clynes bled profusely. The offender continued to attack Mr Clynes, despite Reynolds telling him to stop. The offender was laughing as he did so. He left the room, announcing that he was going to wash his hands. There were stolen an Abbey National bank card, a benefit book and a wallet. Other residents at the hostel came to Mr Clynes' aid. He had collapsed. An ambulance was called. He was taken to hospital. The numerous superficial stab wounds were treated with steri strips and stitches. He stayed in hospital for two nights.[9]In consequence of this attack, Mr Clynes fears for his personal safety and is particularly upset by wondering why it was that he was targeted.[10]The offender was arrested four days later, on 22nd November. In interview, he denied the offence and claimed never ever to have been to the hostel.[11]The offender has previous convictions, in particular, in 2001, for racially aggravated assault, for which he received a community punishment order and, in 2002, for possession of an offensive weapon, a lock-knife, in a public place, for which he received a curfew order. He also received community rehabilitation orders and a sentence of 3 months' detention for three offences of burglary, in 2003. At the time of these offences he was subject to a community rehabilitation order and an antisocial behaviour order. It is therefore apparent that the judge who passed sentence was wrong in describing the offender as having no previous convictions for violence.[12]Reynolds was sentenced to 21 months' detention. In that respect he was, no doubt, extremely fortunate. He had, however, pleaded guilty to these offences and had, on two occasions, given evidence for the prosecution. Furthermore, on the evidence of Mr Clynes, Reynolds was by no means the prime mover in these activities and had tried to stop the offender from stabbing the victim. Furthermore, Reynolds had no previous convictions for violence and there was a psychological report upon him which described how he was easily led.[13]On behalf of the Attorney-General, Miss Johnson draws attention to what she rightly submits are a considerable number of aggravating features. First, the victim was targeted and vulnerable. Secondly, he was in his home. Thirdly, the attack took place at night. Fourthly, the events were unprovoked. Fifthly, the violence used was gratuitous and sadistic and involved the use of a knife brought for the purpose. Next, there were two attackers acting together. Next, considerable injuries and distress were caused. Next, the offender ignored the co-accused's plea to stop stabbing the victim. Finally, there are the previous convictions for assault and possession of a knife to which we have referred.[14]Miss Johnson draws attention to the single mitigating feature which appears to be present, namely the offender was only 20 at the time of these offences.[15]A number of authorities are referred to in the Reference. They include Attorney-General Reference Nos 32 and 33 of 1995 (1996) 2 Cr App R(S) 346, Attorney-General's Reference No 89 of 1999 [2000] 2 Cr App R(S) 382, Attorney-General's Reference No 4 of 2004 [2005] 1 Cr App R(S) 108 and Attorney-General Reference Nos 38 and 39 of 2004 [2005] 1 Cr App R(S) 267.[16]The submission which Miss Johnson makes, which is not resisted by Mr Rankin on behalf of the offender, is that these authorities indicate that the sentence below ought to have been within the bracket of 8 to 10 years for this type of offence and the sentence passed ought to have been towards the top of that bracket.[17]Mr Rankin, on behalf of the offender, submits that the judge was, following the trial, best placed to assess the appropriate sentence in relation to this offender. There are two comments to be made on that generally acceptable proposition so far as the circumstances of this case are concerned. First, as we have already said, the judge sentenced on the erroneous basis that the defendant had no previous conviction for violence. Secondly, the learned judge expressly, in his sentencing remarks, indicated that a higher sentence would have been appropriate but, in view of prison overcrowding he was not going to impose the higher sentence which, it may be, he first had in mind. That approach was misconceived. It is true that the learned judge did not have the advantage of the observations made by the present Lord Chief Justice, Lord Phillips of Worth Matravers in the case of R v Scarth (21st March 2006) which was reported in The Times on 28th March 2006. In the course of giving the judgment of the Court, the Lord Chief Justice said this:
"The fact that prisons are overcrowded may, for that reason, be a relevant factor when the sentencers decision is on the cusp, so that there is a real issue as to whether a community sentence can be justified rather than a custodial sentence."
The learned Lord Chief Justice also, however, said that over- crowded prisons are not a material factor when one is dealing with a case of such gravity that there can be no question that a significant term of imprisonment is called for. That reflects the approach enunciated by the former Lord Chief Justice, Lord Woolf, in R v Kefford [2002] 2 Cr App R(S) 495.[18]Mr Rankin draws attention to the period of 14 months or so which had elapsed between the commission of these offences and the date on which the offender was sentenced. The reasons for that lapse of time have already emerged from what we have said in relation to the course which events followed in the Court below. Mr Rankin draws attention to a wing report from the prison where the offender is incarcerated which describes him as "courteous and polite" to staff and fellow prisoners. Mr Rankin says that today, at least, the offender accepts responsibility for what he did. Finally, Mr Rankin relies on the principle of double jeopardy, that is to say that the offender is being sentenced a second time.[19]In our judgment, the sentence passed in the court below was plainly unduly lenient. We would have expected a total sentence of the order of 10 years. Taking into account double jeopardy, the sentence which we pass on count 1 in the indictment, the count of robbery, is one of 6 years in place of the 3 years imposed by the learned judge, and on count 2 8 years in place of the 4 years imposed by the learned judge. The total sentence therefore becomes one of 8 years' imprisonment.