Attorney General's Reference Nos. 51, 52 and 53 of 2005 [2006] EWCA Crim 117

No: 2005/02868/A8, 2005/2869/A8 & 2005/02870/A8

[2006] EWCA Crim 117

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 12 January 2006

The Strand

London WC2

B e f o r e:

LORD JUSTICE LATHAM

MR JUSTICE BURTON

THE RECORDER OF LONDON

(Sitting as a Judge of the Court of Appeal Criminal Division)

ATTORNEY GENERAL'S REFERENCE Nos. 51, 52 and 53 of 2005

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

R E G I N A

- v -

SONNY CRIPPS

JAMIE TOM BOWEN

SAM HOLLOWAY

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4A

Telephone No: 020-7421 4040

(Official Shorthand Writers to the Court)

MR E BROWN appeared on behalf of the ATTORNEY GENERAL

MR G PAYNE appeared on behalf of THE OFFENDER SONNY CRIPPS

MR D HOLBORNE appeared on behalf of THE OFFENDER JAMIE BOWEN

MR C DIGBY appeared on behalf of THE OFFENDER SAM HOLLOWAY

J U D G M E N T

Thursday, 12 January 2006

[1]In this case the Attorney General seeks leave to refer to this court for review sentences which he considers to be unduly lenient. We grant leave. The sentences were imposed on the three offenders on 3 May 2005 for offences arising out of a horrific incident which occurred in the early hours of the morning of 16 November 2005.

[2]The offender Cripps pleaded guilty to two offences arising out of that incident. For causing grievous bodily harm with intent he was sentenced to three-and-a-half years' detention in a young offender institution and for robbery (arising out of the same incident) he was sentenced to two-and-a-half years' detention concurrently. The offender Bowen was sentenced to two-and-a-half years' detention in a young offender institution and the offender Holloway was sentenced to three years' detention in a young offender institution.

[3]This is a tragic case which arose from circumstances which are unhappily only too familiar to this court. It is tragic, fortunately, not because the ultimate outcome for the victim has been as serious as might have been expected from the description which we shall give of the attack to which he was subjected, but because the offenders are young men, each of them 18 years old, of positive good character, about whom much has been said which goes to their credit. But unhappily what they did that night was quite unforgivable.

[4]The victim, Brown, was also 18 years of age. He had been in a nightclub known as Brannigan's in Romford when an incident occurred which resulted in his being asked to leave. The incident appeared also to have involved the offender Cripps. Outside the nightclub Brown spoke, first, to one other person and then walked away. What happened thereafter was captured on closed-circuit television cameras which have provided a clear narrative of what thereafter occurred.

[5]The offenders Cripps and Bowen followed Brown, who appreciated that he was being chased. He turned into a side street. Cripps caught up with him, took hold of him, punched him three times in the face and kneed him to the ribs. There were at least three further punches thereafter, at which stage the victim handed over his telephone to Cripps and emptied his pockets. He was then punched once again by Cripps. Bowen was by this time on the scene. Holloway joined them soon afterwards. The victim backed away from them down the alley-way. Holloway went up to him and appeared to speak to him. At the same time Cripps and Bowen confronted an acquaintance of Brown and that person ran off. Cripps then took a moment to pick up some money which had been dropped by Brown and put it into his pocket. It was then that Bowen attacked Brown. He punched him in the face. Holloway joined in, kicking him to the stomach. As a result Brown fell to the ground and curled up in a ball.

[6]What had happened up till then was bad enough, but what happened thereafter was truly dreadful. All three offenders then began to kick Brown, who appears to have then (perhaps mercifully for him) lost consciousness. People in the area called out to the three to stop. One of the attackers (it is not clear who) was heard to say, "I don't care if I kill him". Bowen then left the scene, leaving Cripps and Holloway still kicking Brown. At least five kicks were thereafter delivered by Holloway, who then proceeded to stamp on his head three times. Cripps kicked him four times and stamped on his head eight times. He and Holloway began to walk away, but Cripps then returned and stamped on his head one final time before running off.

[7]Bystanders went to the aid of Brown. He was taken to hospital. He was unconscious for six days. He suffered severe bruising to the face, a small bleed to the front of the brain, two fractures to the left jaw, a broken nose, a fractured right cheekbone and an injury to his spine. He needed surgery to the facial injuries, and still has bolts fixing his jaw in place.

[8]It has not been possible to discover what Brown's present condition is. But at the time of the trial he remained significantly affected. He had not worked up until then and was receiving counselling from a psychiatrist because of the trauma that he had sustained.

[9]After their arrest, the offender Cripps immediately accepted that he was the man who could be seen in the television footage stamping on the body and the head of the victim. Bowen, however, denied responsibility. Holloway said nothing. Ultimately, Cripps pleaded guilty at the pleas and directions hearing. Holloway pleaded guilty at a later stage and eventually Bowen also pleaded guilty.

[10]Before the sentencing judge there were pre-sentence reports which set out the good character of each of the three offenders and the fact that they were able to pray in aid positive good character. There was a substantial amount of material put forward on behalf of in particular Holloway from those who supported him. The reports all referred to the fact that each of the three offenders was genuinely remorseful.

[11]Having considered all that material, in his sentencing remarks

the judge said:

"Allowing for your age, each of you is 18, allowing for everything said on your behalf so eloquently and everything said in each of the reports -- and whilst I think it unlikely that any of you will be involved in anything like this again -- there is no choice but to sentence each of you to a custodial term."

[12]On behalf of the Attorney General Mr Brown submits that, despite the mitigating features of the case in relation to each of these offenders, the judge nonetheless fell into error and imposed sentences which were unduly lenient. He points out that the offences had the following aggravating features: this was a concerted and unprovoked attack on a lone man in the street, who was defenceless and for part of the attack unconscious; it was an attack by three men acting together; two of them had at one stage prevented one of the bystanders from helping; the attack was not merely carried out by punches, but by kicks and stamps on the victim's head; after Bowen and Holloway had both left, the offender Cripps returned to deliver a final blow to the head; the attack continued despite calls to stop from others nearby; and the victim suffered severe injuries which produced continuing symptoms, certainly up to the time of the trial. Mr Brown has referred us to a number of authorities, as indeed have counsel for the offenders. It is clear that the courts have consistently indicated in cases involving attacks such as this that it is unlikely that anybody involved in such an attack could expect a sentence of less than four years' imprisonment after a fight. That was the view of this court expressed by the Lord Chief Justice in Attorney General's Reference No 47 of 1994

(1995) 16 Cr App R(S) 865

. However, it is clear that no case is the same as another. That was stated by Lord Taylor CJ in Attorney General's Reference No 40 of 1994

(1995) 16 Cr App R(S) 862

[13]This case has the hallmarks of a prolonged and vicious attack. Bearing in mind in addition to the attack the fact that the offender Cripps was prepared to rob the victim, we consider that he could not have expected a sentence of less than five years' detention in total, despite his plea of guilty. We take into account the fact that not only is he a man of good character, but the reports that we have show that that is against a background of deprivation in many ways which rendered the fact that he had not been in trouble of added credit to him. Nonetheless, we consider that, since the least possible sentence in our judgment could have been one of five years' detention, this sentence was unduly lenient. Taking into account double jeopardy, we propose to substitute a sentence of four-and-a-half years' detention for the three-and-a-half years imposed for the offence of causing grievous bodily harm with intent.

[14]As far as the offender Holloway is concerned, we do not consider that, even after a plea of guilty, his participation in this episode should have resulted in a sentence of less than four years' detention. To take account of double jeopardy, we propose to impose a sentence of three-and-a-half years' detention in substitution for the three years imposed by the judge.

[15]As the sentencing judge recognised, Bowen falls into a different category. He was not involved in the attack for as long as Cripps and Holloway. He left before they did and sought to persuade them to desist. Taking all those matters into account, we nonetheless consider that he could and should have expected a sentence of not less than three years' detention. However, taking into account, firstly, double jeopardy, and, secondly, and perhaps more importantly, the fact that he has now been released on home curfew so that if we were to interfere with the sentence that might result in his return to custody, we consider that, in the exercise of our discretion, it is not necessary to interfere with the sentence that was imposed by the judge. Accordingly his sentence remains as it was.

[16]We are grateful to counsel for their submissions. __________________________________