Reference 99 of 2005 By the Attorney General, Re S.36 Criminal Justice Act 1988 [2006] EWCA Crim 228

Case No 2005/5217/A4[2006] EWCA Crim 228
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 15 February 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE STANLEY BURNTON
MR JUSTICE SIMON
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 99 OF 2005
Computer Aided Transcript of the Stenograph Notes of
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MR A DARBISHIRE appeared on behalf of the ATTORNEY GENERAL
MR P WARNE appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE KEENE:

[1]This is an application under section 36 of the Criminal Justice Act 1988 by Her Majesty's Attorney General for leave to refer a sentence to this court because it appears to him to be unduly lenient. We grant leave and we therefore treat this as the hearing of the Reference.[2]The offender, Gary John Flynn, pleaded guilty on rearraignment at the Crown Court at Minshull Street, Manchester, on 7th January 2005 to causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. He also pleaded guilty to damaging property.[3]On 7th September 2005 he was sentenced by His Honour Judge Lever to five years five months' imprisonment for the section 18 offence, with no separate penalty for the offence of criminal damage. A consecutive sentence of one month's imprisonment was passed for an offence under the Bail Act, thereby making a total of five-and-a-half years' imprisonment in all.[4]Both the offender and the victim, a man called Vaughan, were residents of a hostel in Altrincham. They were indeed friends. They both spent the evening in question, 23rd March 2004, drinking and smoking cannabis with their girlfriends. However, an argument arose between the two men and a fight started in the corridor outside the room occupied by the offender's girlfriend. It is unclear precisely how it began but it is clear that the offender quickly got the better of Mr Vaughan. By the time Mr Vaughan's girlfriend got into the corridor, Mr Vaughan was slumped against the wall with the offender kicking him to the head and face. She described the offender repeatedly kicking Vaughan in the face with a stamping motion:
"He seemed relentless, like an animal or maniac, kicking him three or four times."
Mr Vaughan appeared to be losing consciousness. She tried, she said, to get between them but she was pushed away by the offender who returned to punching and kicking Mr Vaughan in the head and face. Another resident heard the offender shouting: "I'm going to fucking kill you. I'm going to slit your throat", and saying that he was going to get a knife. The offender left the corridor and Mr Vaughan's girlfriend tried at that point to get the victim to the lift so as to be able to take him down to the reception area on the ground floor to get help. However, before she was able to get him to the lift the offender returned, brandishing a knife which he put to Mr Vaughan's throat. He refused to allow Mr Vaughan's girlfriend to take Mr Vaughan to the reception. Instead he insisted that they go to the offender's room on the first floor of the building. Once on the first floor the offender began to drag Mr Vaughan towards his room, whilst still holding the knife. He again punched and kicked out at him, kicking him to the head at least once. About three quarters of the way between the lift and his room the offender suddenly stopped the assault. Perhaps suddenly aware of the extent of Mr Vaughan's injuries he seemed to accept the pleas from the girlfriend that an ambulance should be called. The offender then carried Mr Vaughan to the reception area before disposing of the knife.[5]Paramedics arrived and attended to the victim. The offender remained at the scene, still behaving unpredictably, at one point smashing a fish tank in the foyer area. That last action formed the basis of the charge of damaging property.[6]Forensic scientists examined the hostel. Blood splattering was found both in the corridor on the fourth floor where the assault had started and on the first floor. The first floor bloodstaining, which included spatter on the wall and ceiling, indicated two separate sites of assault on that floor.[7]At interview the offender said there had been a "fight between friends" which had got out of control. He said that he had punched Mr Vaughan about six times and that it had lasted two or three minutes. He denied kicking Mr Vaughan or having been in possession of a knife or having continued the assault on the first floor.[8]On arrival at Accident and Emergency it was apparent that Mr Vaughan had sustained traumatic brain injury. A CT scan revealed a large subdural haematoma which was operated on. By 16th April 2004, that is to say some three-and-a-half weeks after the incident, Mr Vaughan was still neurologically very impaired, although he was able to open his eyes spontaneously and to respond to pain. He had spastic quadriplegia with flexion contractures at the elbows and ankle. He was feeding through a tube.[9]The latest medical report indicates that Mr Vaughan is effectively quadriplegic. He is now receiving full-time care in a nursing and residential home, the Matron of which states that all four limbs are in permanent spasm. All food has to be administered to him via a tube directly into the stomach. While he does respond to pain by facial expressions, he is unable to communicate. He is doubly incontinent. He is virtually bed-bound but can be hoisted out of his bed and sat in a wheelchair. All of his personal hygiene has to be done by his carer. In terms of any recovery his condition is not expected to improve.[10]In sentencing the offender the judge described the plea of guilty as an early one and said that he was giving a maximum one-third credit for it. He also noted the offender's violent and difficult childhood and his absence of previous convictions.[11]The offender is aged 22, having been 21 at the date of the offence. The judge's reference to his violent and difficult childhood is borne out by the psychiatric reports on him which refer to his inability to control his aggression. We shall have to return to those reports in due course in this judgment.[12]A pre-sentence report referred to a "potentially significant and extreme risk to members of the public".[13]The Attorney general is of the opinion that the sentence passed, a total of five-and-a-half years' imprisonment, was unduly lenient and that it failed both to reflect adequately the seriousness of the offence and the need to protect the public from the risk posed by the offender.[14]On behalf of the Attorney General, Mr Darbishire draws attention to the fact that this was a deliberate and sustained attack on a man who from the earliest stages was not only defenceless but barely conscious. He contends that it is difficult to conceive of a more serious non-fatal assault. It is also said that the offender pushed aside the attempted intervention and protection of the victim's girlfriend and then continued the assault. Perhaps above all, Mr Darbishire emphasises that the consequences of the attack were as grave as in any offence short of homicide. The result has been the total and permanent destruction of the victim's ability to engage in or enjoy any aspect of normal human life.[15]At the same time, the Attorney General recognises that some mitigating features are present: the absence of previous convictions, the lack of premeditation and the plea of guilty. On the last of those it is submitted by Mr Darbishire that this was not a case which merited a one-third discount for a guilty plea. Our attention has been drawn to the fact that the offender was arraigned in June 2004 and pleaded not guilty. The case was adjourned then to a date in July for trial but that fixture was twice broken. The defence finally indicated to the prosecution that the offender would be pleading guilty in December 2004, shortly before the third date fixed for trial. This was some seven months after the first arraignment. The recent Sentencing Guidelines Council guidelines would suggest that a reduction no greater than one tenth of the term, says Mr Darbishire, should have been made. In all those circumstances it is contended that this was clearly an unduly lenient sentence.[16]As to what the sentence should have been, it is submitted on behalf of the Attorney General that there is abundant evidence that the offender presented a serious risk to the public for an indeterminate time. In his sentencing remarks the judge himself acknowledged what he called the "high danger" to the public. Although the offender does not have previous convictions, there is clear evidence, it is said, of a pattern of violence in the past on the part of this offender towards his family. Mr Darbishire particularly refers to the psychiatric reports on the offender, especially those dated 28th February 2005. These indicate, first, that the offender had been receiving psychiatric help in the past, certainly from late 1998 to mid-1999. Dr Clark, a psychiatrist, writing in April 1999, described the offender as follows:
"He is a 16-year-old male with a history of conduct disturbance, substance misuse, assaultative behaviour and deliberate self harm, all of which place him in the highest risk groups for suicide or homicide."
Mr Darbishire draws attention to those final words. Another letter from the same psychiatrist says this of the offender:
"He acknowledges the use of knives and big sticks in some of his confrontations. His violence is predominantly within the immediate family but he does acknowledge some fights with other young men resulting in a broken nose, not his, and attendance at hospital. He has been in more fights over the last eight to nine months but does acknowledge some occurring at previous schools."
A Dr Gowrisunkur, the consultant psychiatrist producing the 2005 reports, states towards the end of his addendum report:
"All professionals agree on the high level of risk presented by Mr Flynn to his family at the time, to himself but also to anyone with whom he might be close. Clearly, some of the predicators identified by Dr Clark have unfortunately been fulfilled by Mr Flynn's recent assault."
[17]In the light of all this evidence and of the facts relating to the present offence, it is contended on behalf of the Attorney General that there is clear evidence of a high level of risk to others from this offender, a risk of serious violence. Unless there was evidence that there was a finite and predictable end to that period of risk to others the judge should have considered either an extended licence beyond a lengthy custodial term or a discretionary life sentence, and preferably the latter. Mr Darbishire submits that the requirements for a discretionary life sentence are met in the present case. He relies on the psychiatric reports which identified the offender as suffering from impulse control disorder and refers us to the concluding paragraph in the main report. That reads as follows:
"Impulse Control Disorder of this severity is difficult to treat and my prognosis is guarded especially if Mr Flynn cannot limit his drug intake and change his lifestyle. However, it is worth pursuing the option of treatment in order to make an attempt to improve the situation. Good prognostic factors include his good level of insight, his expression of remorse, his motivation to seek treatment and the stable relationship he has with his current partner and child."
It is therefore submitted on behalf of the Attorney General that there is no evidence that a determinate period would be sufficient to avoid the risk to the public. Indeed, Mr Darbishire's contention is that the evidence points in the other direction.[18]If and in so far as the court is considering a commensurate sentence of finite length, reliance is placed on two authorities: Moore and Feeney [2003] EWCA Crim. 3698, [2004] 2 Cr.App.R (S) 153 and Desourdy [2003] EWCA Crim 3727, [2004] 2 Cr.App.R (S) 188. Those are said to provide guidance as to the appropriate length of sentence for a section 18 offence with consequences of the very gravest kind, as in the present case. They indicate, it is said, a sentence of 12 years after a trial or in the range of nine to 10 years after a plea of guilty.[19]On behalf of the offender, Mr Warne, who has taken the brief on behalf of the offender we understand at short notice and for that we are grateful, concedes that the sentence in this case was somewhat light. He acknowledges that an appropriate one at trial may well have been in the order of seven to eight years' imprisonment. But he argues that given double jeopardy and the existence of this court's discretion we should not intervene today.[20]As to the possibility of a life sentence, it is submitted that the judge in the present case did assess the risk to the public and had the same facts available to him as are before this court. Mr Warne points out that the offender is aged only 22, he is in that sense capable of rehabilitation and of course emphasis is placed on the fact that this is his first serious offence. It is noted that we now have available recent reports from the prison where the offender is being held. They contain no adverse comments and no adjudications against him. Consequently, says Mr Warne, there seems to be a marked improvement in his behaviour particularly when compared to the period on remand when he seems to have found himself engaged in seven or eight fights. Given that degree of improvement, it is contended that there should here be a commensurate determinate sentence. Moreover, it is argued that it would be draconian to impose a life sentence without up-to-date psychiatric reports. Mr Warne points out that the reports available to us are dated February 2005 and they do not enable one to assess the degree of improvement which has occurred.[21]As to the length of a commensurate sentence, Mr Warne seeks to distinguish Moore and Feeney and Disourdy. He points out that there was in Disourdy a Newton hearing which must have affected the sentence and he refers us to some authorities where lesser sentences were imposed, although he acknowledges that those other authorities were ones where the consequences for the victim or victims were lesser than those which exist in the present case. Mr Warne acknowledges that it is difficult to argue that the present case is not at or near the top end of the range of seriousness for section 18 offences, but he argues that the judge took into account all relevant matters. Finally, he submits that if a life sentence were to be imposed there is a danger that this might damage the progress which appears to be being made currently by the offender in prison.[22]This court accepts that this was a case where no weapon in the conventional sense of that term was used. However, it has been said more than once that the use of a boot, particularly when directed at the victim's head, is tantamount to the use of a weapon.[23]There were some seriously aggravating features to the present case. Not merely did the offender repeatedly kick and stamp the victim's face and head, but on one occasion he did so in the course of at least a second and distinct episode shortly afterwards in a different location. It was indeed an offence of sustained and brutal violence. It is clear that for much of the time the victim was wholly unable to defend himself. In addition, the offender prevented the victim being taken for help when the latter was already clearly in a semiconscious state. Thirdly, to prevent that happening the offender used a knife to threaten, having gone off and deliberately armed himself with that knife. Fourthly, and of very great significance, there are the consequences of this assault for the victim. He has been reduced by this vicious attack to a condition which effectively robs him of all those things which make life worth living. That condition appears to be permanent. It is, in the view of this court, difficult to conceive of more serious consequences short of death. They resulted from an attack in which, as his plea acknowledged, the offender's intention was to cause really serious bodily harm to Mr Vaughan. That factor takes away any possible mitigation there might have been to be derived from the consumption of drink and drugs. The intent to cause such harm was present. It is said in the written mitigation that the offender eventually desisted from his attack. That is true, but had he continued he might well have found himself facing a murder charge.[24]There is some mitigation available to a limited extent. The offender has no previous convictions. This was not a premeditated offence but resulted from a sudden loss of self-control. Some credit is due for his plea of guilty. We do not, however, share the view of the sentencing judge that this plea merited a one-third reduction in sentence. Given the passage of time since his plea of not guilty at arraignment, and the fact that a trial date had been set three times before he changed his plea, it seems to this court that in the light of the Sentencing Guidelines Council guidance no more than about 15 per cent discount could properly be given on a determinate sentence. We of course take into account the violent and difficult childhood of the offender, as did the judge below.[25]The judge here chose to impose a determinate sentence. Even if that were right we are satisfied that his sentence was unduly lenient. The two most helpful authorities on determinate sentences for section 18 offences with consequences of this kind are those referred to by Mr Darbishire. In Desourdy the appellant and two others attacked a man with the appellant knocking him to the floor and then stamping and jumping on his face. He then dragged the victim down some concrete steps allowing his head to bang on those steps. The victim suffered multiple fractures of the cranium, his brain was badly swollen and part of his spine fractured. The result was that he could not walk unaided, his speech was slurred and he needed help to deal with dressing, washing and attending to his toilet needs. The appellant in that case was aged 22. He changed his plea to guilty on the second occasion set for trial and there was, as has been remarked during argument, a Newton hearing. He was sentenced to 11 years' imprisonment and this court was not persuaded to intervene. The case bears some similarities to the present one, though the tragic consequences there were not quite as serious as in the present matter.[26]Moore and Feeney was a case where this court did intervene and so provides firmer guidance. The two appellants there were convicted after a trial of a section 18 offence. They punched the victim and once he was on the ground kicked and stamped on his head and then left him on a grass verge outside a neighbour's house. The victim suffered a fractured skull and jaw and a severe brain injury which left him in a vegetative state from which he was unlikely to recover. The trial judge imposed a sentence of 15 years' imprisonment which this court reduced to 12 years. One of the appellants was of good character. The other had previous convictions many years earlier. That case of course involved sentences imposed after a trial with no discount for a plea of guilty. Other than that, it bears some considerable similarities to the present case. We do not otherwise see, despite Mr Warne's submissions, that it can properly be distinguished.[27]In the light of those authorities this court is satisfied that a sentence of five-and-a-half years in total was unduly lenient.[28]The next question is what sentence should be substituted for it? The test for the imposition of a discretionary life sentence in cases such as this is set out in Attorney General's Reference No 32 of 1996 [1997] 1 Cr.App.R (S) 261. The court has to be satisfied that it appears that the offender is likely to represent a serious danger to the public for an indeterminate period of time. It is clear to this court that this offender does indeed present a serious danger to the public as things stand at present. This may be his first offence of serious violence but there is clear evidence of violent behaviour on his part in the past, as referred to on behalf of the Attorney General. Indeed, it is conceded by the offender's counsel who refers in his written submission to the offender's "admitted history of violent outbursts." The offender is patently unable to control his anger which exhibits itself in violence. The psychiatric reports on him bear this out. The danger is of serious violence as tragically occurred in the present case. Those reports and the other evidence set out earlier in this judgment, which we need not repeat, show good grounds for concluding that he is likely to remain such a serious danger in the future. For how long that will endure cannot at present be estimated. As Mr Warne accepts, the prognosis is uncertain. That, in our judgment, is the classic situation where an indeterminate sentence is required for the protection of the public. We are satisfied that a discretionary life sentence is justified and required in the present case. That will enable this young man's progress to be monitored carefully which is what the judge below wished to see happen. It may be that he is already starting to make some progress in prison, as the current prison reports suggest, but we do not see that anything useful will be served by seeking a further psychiatric report at this stage. That will no doubt happen as time progresses.[29]We have of course to specify the period to be served as a result of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 before the offender may require the Secretary of State to refer his case to the Parole Board. That is a period to reflect the need for punishment and deterrence. Given the authorities to which we have referred earlier where determinate sentences were passed, it seems to us that allowing for the late plea of guilty at first instance a determinate sentence of about 10 years' imprisonment ought to have been imposed in this case. To allow for double jeopardy that would have been reduced on this Reference in this court to a term of nine years' imprisonment. We therefore specify the period under section 82A as being one of four-and-a-half years' imprisonment, less time spent in custody before sentence. We are told that his time on remand amounted to 179 days and that of course must be deducted from the four-and-a-half years.[30]The end result of this Reference is that we quash the sentences imposed below. In their place we substitute a sentence of life imprisonment for the section 18 offence with the specified period to which we have referred. No separate penalty will be imposed for the other offences.[31]MR DARBISHIRE: My Lord, may I raise one other matter very shortly? It is simply this. During the luncheon adjournment I referred to the standard form references and advices for the Attorney in cases of this sort. Your Lordships may not know but the standard practice is to draft an advice which contains a review of the relevant authorities and an indication for the Attorney as to what counsel drafting the advice indicates the tariff should have been. May I, so that I have the picture clear, understand from your Lordships indication that this court would prefer rather than a simple indication of which authorities are relied upon, at least in headline form some indication of what range and type of sentence the Attorney representing should have been passed for the guidance of everyone?

LORD JUSTICE KEENE: Mr Darbishire, we are not suggesting the Attorney has to specify the length of the determinate sentence which he feels should be imposed, but where a determinate sentence has been imposed and the Attorney is intending to submit that that is the wrong type of sentence and that for example a discretionary life sentence should have been imposed, that ought to be spelt out in the Reference to the court. That aids the court and also of course puts the offender on notice as to the case that he is going to have to meet.

[33]MR DARBISHIRE: Indeed. It remains the case that where only a determinate sentence is in consideration generally References as currently drafted will not give any indication as to what the Attorney's submission will be as to the appropriate range of determinate sentence. I wonder whether applying -- I am sorry.

LORD JUSTICE KEENE: What we intend to do, Mr Darbishire, as this raises matters of far-reaching importance, for my part I would certainly want to consult with the Vice President of the Court of Appeal (Criminal Division) and perhaps the Lord Chief before we determine that. That is as far as we can go today, I think. If we think that the form ought to be changed so that the Reference does in most cases, even in determinate instances, specify the range of sentence actually being suggested by the Attorney, we will let the Attorney's chambers know.

[35]MR DARBISHIRE: I will immediately convey your Lordships' observations about indeterminate sentences as a type.

LORD JUSTICE KEENE: Yes, and may I say that would apply to other non-straight sentences, if I may so describe them, ones where an extended licence period is being advocated, for example, or --

[37]MR DARBISHIRE: Wrong in principle would probably cover the case.

LORD JUSTICE KEENE: Yes.

[39]MR DARBISHIRE: Thank you, my Lord.

LORD JUSTICE KEENE: I hope that is of some help.