Johnson, R v [2006] EWCA Crim 2486

[2006] EWCA Crim 2486Case No (1)2006/01697/A7(2)2006/02275/A5(3)2006/02462/A8(4)2006/03196/A3(5)2006/01862/A5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
(1) ON APPEAL FROM CROWN COURT at LIVERPOOL
HIS HONOUR JUDGE GLOBE
(2)ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE LORRAINE SMITH
(3)ON APPEAL FROM CROWN COURT AT SHEFFIELD
HIS HONOUR JUDGE BULLIMORE
(4)ON APPEAL FROM WINCHESTER CROWN COURT
HIS HONOUR JUDGE CUTLER
(5)ON APPEAL FROM SHEFFIELD CROWN COURT
HIS HONOUR JUDGE GOLDSACK QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/10/2006
Before
THE PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE GOLDRINGMR JUSTICE OWEN
R- v -(1) Johnson R-v-(2) Hamilton R-v-(3) Lawton (4) Reference by HM Attorney General (Jones) R-v-(5) Gordon
Between
Counsel for Johnson: Mr M BagleyCounsel for Hamilton: Miss A PiercyCounsel for Lawton: Mr D SinghCounsel for the Attorney General: Mr J LaidlawCounsel for Jones: Mr R. BrownGordon (non-counsel renewed application)Hearing Hearing date : 3 rd October 1006
JudgmentPresident of the Queen's Bench Division :Introduction
[1]These cases raised a number of common issues arising from the sentencing regime created by ss224-229 of the Criminal Justice Act 2003 (the 2003 Act), and the provisions which apply to offenders who may be dangerous and liable to imprisonment for public protection. By coincidence they were listed consecutively on the same date.[2]Invaluable understanding of this complicated piece of legislation was provided in R v Lang and others [2006] 1WLR 2509 in the illuminating judgment given by Rose LJ, the Vice President of the Court of Appeal Criminal Division. Perhaps the fact that the judgment was given in his customary clear and trenchant terms by one of the pre-eminent criminal judges of this generation has led practitioners to conclude, and certainly for some of them to advance arguments which proceed, as if every word of the judgment should be treated as statute. Indeed that was precisely how one counsel appearing before us did describe it, treating the judgment as synonymous with the statute with which the judgment was concerned. However, and unsurprisingly, Rose LJ himself emphasised that the judgment represented “an attempt to summarise the approach to sentencing with the Act requires and to give guidance as to its meaning”. He warned against treating it as if it were a “substitute for looking at the Act’s provisions”. We therefore decided that we should address some of the areas of potential misunderstanding arising from Lang, in order to explain and amplify its guidance.[3]We must put our observations into context. Until recently, the sentencing options available to deal with offenders who posed a continuing danger were limited. Although they have steadily developed in the avalanche of legislation that followed the Criminal Justice Act 1991, the 2003 Act provided a new sentence, imprisonment for public protection. Throughout this judgment unless the sense requires otherwise, we shall describe this as “the sentence”. Before analysing the relevant provisions, we should emphasise that even a cursory glace at them makes it plain that the sentence is concerned with future risk and public protection. Although punitive in its effect, with far reaching consequences for the offender on whom it is imposed, strictly speaking, it does not represent punishment for past offending. As any such assessment of future risk must be based on the information available to the court when sentence is passed, the potential for distraction from the real issue, is obvious. Nevertheless, when the information before the court is evaluated, for the purposes of this sentence, the decision is directed not to the past, but to the future, and the future protection of the public.[4]It is convenient to begin with section 229 which provides:
“The assessment of dangerousness (1) This section applies where (a) a person has been convicted of a specified offence and (b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences (2) If at the time when that offence was committed the offender had not been convicted in any part of the United Kingdom of any relevant offence or was aged under 18, the court in making the assessment referred to in sub-section (1)(b) (a) must take into account all such information as is available to it about the nature and circumstances of the offence, (b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and (c) may take into account any information about the offender which is before it. (3) If at the time when that offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1)(b) unless, after taking into account – (a) all such information as is available to it about the nature and circumstance of each of the offences, (b) where appropriate, any information which is before it about any pattern of behaviour of which ay of the offences forms part, and (c) any information about he offender which is before it, the court considers that it would be unreasonable to conclude that there is such a risk. (4) In this Chapter “relevant offence” means – (a) a specified offence….” (a) a person has been convicted of a specified offence and (b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences (a) must take into account all such information as is available to it about the nature and circumstances of the offence, (b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and (c) may take into account any information about the offender which is before it. (3) If at the time when that offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1)(b) unless, after taking into account – (a) all such information as is available to it about the nature and circumstance of each of the offences, (b) where appropriate, any information which is before it about any pattern of behaviour of which ay of the offences forms part, and (c) any information about he offender which is before it, the court considers that it would be unreasonable to conclude that there is such a risk. (a) a specified offence….”
[5]The specific words in the headnote to section 229, “the assessment of dangerousness”, do not appear in sections 224-229, and it seems clear that “dangerousness” is intended to represent a convenient shorthand to describe, in the words of section 225(1)(b) those cases where “The court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission…of further specified offences”. This provision is common to sections 225 to 228. In this judgment therefore, when we speak of dangerousness, we shall use the same convenient shorthand. But it is a shorthand, and following Lang, we emphasise that there are two distinct requirements to a finding of dangerousness for the purposes of section 225.[6]It is a prerequisite to the sentence that the offender has been convicted of a “specified offence”, one of 153 categories of violent or sexual offences listed in Parts 1 or 2 of Schedule 15 of the 2003 Act. Some specified offences are, and some are not serious offences for the purposes of section 224. Where, in the judgment of the court, there is a significant risk that the offender will commit further specified (but not necessarily serious) offences, and that the consequence of any such offence would be serious harm (“death or serious personal injury, whether physical or psychological”) to members of the public, then, in brief, he is to be regarded as a dangerous offender. Indeed if the judge is satisfied that the offender is properly to be described as dangerous for the purposes of this part of the 2003 Act, then he is required to impose either a sentence of life imprisonment or imprisonment for public protection. The effect of sections 225(1) and (3) is that the court is left with no alternative.[7]Unlike, say, section 225, section 229 does not confirm or create any new sentence. Rather it provides statutory direction on the approach to the assessment of dangerousness which should be adopted by the sentencing court. Section 229(2) is concerned with offenders aged over 18, without previous convictions for specified offences. In reality, this provision adds nothing to the approach which the sentencer would normally take, that is, to consider all the information available to the court. Although the court has what is described as a “discretion” to take into account any information about the “pattern of behaviour” or indeed “any information about the offender”, it is difficult to see how any sentencer, properly forming his judgment, would fail to take all matters of possible relevance into account. What section 229(2) highlights, however, is that it is not a prerequisite to a finding of dangerousness that the offender should be an individual with previous convictions. A man of good character may properly qualify for this sentence.[8]Section 229(3) addresses the familiar situation of the adult offender with previous convictions for specified offences. Here, the court is directed to approach the dangerousness issue by treating it as established unless that conclusion would be unreasonable. The analysis is for the sentencer. The use of language like “assumption” and “conclusion” and “unreasonable” in a provision directing the method of approach to the assessment of dangerousness does not produce helpful clarity. The decision in Lang explained that sentencers should not allow the language of section 229(3) to obscure the ultimate responsibility of the sentencer to make the necessary assessment. The effect of Lang is that, in the end, the question whether it is unreasonable to make the assumption of dangerousness on the basis of previous convictions for specified offences is left to his judgment. The sentencer is entitled to conclude that, notwithstanding the statutory assumption, the offender with previous convictions, even for specified offences, does not necessarily satisfy the requirements of dangerousness.[9]Much of the argument in Lang itself, and many of the submissions in grounds of appeal and arguments coming to this court, on the issue of dangerousness were and are focussed on section 229(3), and whether, and if so in what circumstances the assumption of dangerousness should be disapplied. Lang was particularly focussed on this issue, and nothing in this judgment is intended to undermine the guidance provided by Lang.[10]We can now address a number of specific issues.(i) Just as the absence of previous convictions does not preclude a finding of dangerousness, the existence of previous convictions for specified offences does not compel such a finding. There is a presumption that it does so, which may be rebutted.(ii) If a finding of dangerousness can be made against an offender without previous specified convictions, it also follows that previous offences, not in fact specified for the purposes of section 229, are not disqualified from consideration. Thus, for example, as indeed the statute recognises, a pattern of minor previous offences of gradually escalating seriousness may be significant. In other words, it is not right, as many of the submissions made to us suggested, that unless the previous offences were specified offences they were irrelevant.(iii) Where the facts of the instant offence, or indeed any specified offences for the purposes of section 229(3) are examined, it may emerge that no harm actually occurred. That may be advantageous to the offender, and some of the cases examined in Lang exemplify the point. Another such example is R v Isa [2006] CLR 356. On the other hand the absence of harm may be entirely fortuitous. A victim cowering away from an armed assailant may avoid direct physical injury or serious psychological harm. Faced with such a case, the sentencer considering dangerousness may wish to reflect, for example, on the likely response of the offender if his victim, instead of surrendering, resolutely defended himself. It does not automatically follow from the absence of actual harm caused by the offender to date, that the risk that he will cause serious harm in the future is negligible. Nothing in the decision in R v Shaffi (2006) EWCA 418, which was relied on before us, suggests the contrary. Giving the judgment of the court, at paragraph 11, Sir Richard Curtis summarised the various submissions made on behalf of the appellant. One of them was that the appellant’s previous convictions demonstrated that although the appellant was carrying a knife and a screwdriver in two of the cases, no harm was actually occasioned. The court accepted the force of the overall submission made by counsel that the sentencer was wrong to find that there was a risk of serious harm, and the court was unable to find significant evidence of such harm caused during the commission of the appellant’s previous offences. However the conclusion represented a finding of fact in the particular case. Shaffi is not authority for the proposition that as a matter of law offences which did not result in harm to the victim should be treated as irrelevant. Indeed if that is what Shaffi, decided, it would, in effect, have re-written the statute. (iv)We considered arguments based on the inadequacy, suggestibility, or vulnerability of the offender, and how these and similar characteristics may bear on dangerousness. Such characteristics may serve to mitigate the offender’s culpability. In the final analysis however they may also serve to produce or reinforce the conclusion that the offender is dangerous. In one of the instant cases it was suggested that the sentence was wrong because an inadequate offender had suffered what was described as an “aberrant moment”. But, as experience shows, aberrant moments may be productive of catastrophe. The sentencer is right to be alert to such risks of aberrant moments in the future, and their consequences. (v) In Lang, Rose LJ suggested that the prosecution should be in a position to describe the facts of previous specified offences. This is plainly desirable, (see also Isa) but this is not always practicable. There is no reason why the prosecution’s failure to comply with this good practice, even when it can and should, should either make an adjournment obligatory, or indeed preclude the imposition of the sentence, when appropriate. In any such case, counsel for the defendant should be in a position to explain the circumstances, on the basis of his instructions. If the Crown is not in a position to challenge those instructions, then the court may proceed on the information it has. Equally, there are some situations in which the sentence imposed by the court dealing with earlier specified offences may enable the sentencer to draw inferences about its seriousness, or otherwise. In short, failure to comply with best practice on this point should be discouraged, but it does not normally preclude the imposition of the sentence. (vi) The effect of the 2003 Act, and Lang, has been examined in a number of cases. It is not obligatory for the sentencer to spell out all the details of the earlier specified offences. To the extent that a judge is minded to rely upon a disputed fact in reaching a finding of dangerousness, he should not rely on that fact unless the dispute can fairly be resolved adversely to the defendant. In the end, the requirement is that the sentencing remarks should explain the reasoning which has led the sentencer to the conclusion.[11]At the risk of stating the obvious, the final consideration to which we draw attention, is that this court will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles, and applied his mind to the relevant facts. We cannot too strongly emphasise that the question to be addressed in this court is not whether it is possible to discover some words used by the sentencer which may be inconsistent with the precise language used in Lang, or indeed some failure on his part to deploy identical language to that used in Lang, but whether the imposition of the sentence was manifestly excessive or wrong in principle. Notwithstanding the “labyrinthine” provisions of sections 224-229, and the guidance offered by Lang, these essential principles are not affected. They apply with equal force to References by HM Attorney General. In such cases the question is whether the decision not to impose the sentence, in the circumstances, was unduly lenient. In particular,(i) In cases to which section 229(3) applies, where the sentencer has applied the statutory assumption, to succeed the appellant should demonstrate that it was unreasonable not to disapply it. Equally, where the Attorney General has referred such a case because the sentencer has decided to disapply the assumption, the Reference will not succeed unless it is shown that the decision was one which the sentencer could not properly have reached.(ii) This court is normally not assisted by reference to previous individual cases where there appears to be some similarity with the instant case. We hesitate to remind advocates that individual sentencing decisions are fact specific, and that it is rare for reports of sentencing cases to provide guidance about principle, or indeed to set out all the details of the information before the court which are no more than summarised.[12]In two cases, we were invited to address what may be described as an administrative problem within the prison system. In essence, the argument is that a proper assessment of the risk posed by the offender will not be made before the expiry of the minimum period which should elapse before the offender is released. In other words, the offender will remain in custody after the expiry of the period so specified. Assuming these contentions are correct, the remedy cannot be provided in this court unless, when the sentence was imposed, it was wrong in principle or manifestly excessive. We shall not comment on or address whether the offender in such a situation may be provided with a remedy by the Administrative Court. The decision will be made when it arises in that court. Johnson[13]This is an appeal against sentence with leave of a single judge.[14]Johnson, now aged 31 is a man with numerous previous convictions. On 12th January 2006 in the Crown Court at Liverpool before His Honour Judge Globe QC, Johnson pleaded guilty to manslaughter and affray. On 13th February he was sentenced to imprisonment for public protection, with a minimum term of 18 months, derived from notional determinate sentences of 2 years imprisonment for affray, with 1 year consecutive for manslaughter. A few days later the judge reconsidered the statutory provisions, and the sentence was varied in a number of respects, irrelevant for present purposes. The order for imprisonment for public protection in relation to manslaughter was unaffected. It is this order that we were invited to consider.[15]The circumstances are tragic. On 8 June 2005, George Eakins, aged 78 years, was in a betting shop in Liverpool at about lunchtime. What followed was not his quarrel, and he was, literally, a totally innocent bystander.[16]The trouble arose between the appellant and the two co-accused who saw another man in the betting shop. This was Stephen Wales. There was some bad blood between the appellant and Wales, and an argument developed. The appellant punched Wales who stumbled backwards and collided with Mr Eakins. Mr Eakins was knocked to the ground, banging his head and his back. While Wales was on his knees, the appellant kicked him to the head, and then another co-accused (Kane) kicked his head. The third co-accused (McLellan) joined in and also kicked Wales.[17]The unfortunate Mr Eakins was still on the floor. McLellan broke off his assault on Wales and went to assist Mr Eakins and helped him to his feet. In the meantime the appellant continued to attack Wales. McLellan returned to the fight. Kane then desisted, and took Mr Eakins to a seat and tried to look after him. Wales tried to avoid the attack as he scrambled around on the floor. The appellant continued the assault. At this stage he showed no more concern for the deceased than Wales. He kicked Wales seven times to the head, nine times to the body, and on nine occasions tried to stamp on Wales head.[18]After the attack, and the appellant and his friends had left the premises, the appellant returned and handed two pouches of tobacco to Mr Eakins apologising to him.[19]Mr Eakins declined to go to hospital for a full check up. He went home and complained to his wife of pain to his back and buttocks. A few days later a doctor was called. He noticed that Mr Eakins’ back was very swollen. Later that night his wife found him dead on his bed. As it happened, Mr Eakins was already suffering from pulmonary impairment, and although the bang to his head did not contribute to his death, but for the fall he would not have died when he did. So he was indeed an innocent, tragic, unintended victim of public violence in a quarrel in which he had, and never had any part. Ironically, the target of the attack, Wales, himself a man with significant convictions, did not suffer any serious harm, and would not have reported the attack on him. Fortunately, CCTV footage of the entire incident was available to the judge who saw it, and was plainly struck by an incident of frightening unprovoked and persistent violent, which, as he said, had been started by the appellant, who completely lost control of himself.[20]Johnson was born in June 1975. There were twenty previous court appearances for thirty seven offences between April 1988 and May 2005. These included an offence of indecent assault on a female aged under fourteen, for which he was sent to custody for fifteen months, and conspiracy to rob in 1993 when a sentence of three years imprisonment was imposed. The most recent conviction was in May 2005, some three weeks before the incident currently under consideration, when his abusive and threatening behaviour caused fear to those who witnessed it.[21]The pre-sentence report assessed Johnson as posing a high risk of harm, with a high risk of re-offending.[22]The criticism of the decision to impose imprisonment for public protection proceeds on the basis that the Recorder failed to look beyond the bare facts of the appellant’s offending history to their true circumstances. It was argued that he failed to distinguish between simple re-offending, and re-offending as a result of the commission of specified offences, and in any event failed adequately to address the risk of serious harm. To the extent that he did so, he was wrong to rely on the risk assessment in the pre-sentence report.[23]Dealing with this point first, the argument in summary was that the conclusion in the report was inconsistent with its earlier observation. In particular, the report acknowledged that the impact of the proceedings on the appellant, and commented that his knowledge of the consequences of his actions to Mr Eakins, “may go some way to reduce the risk of future offending”. That observation reflected the fair balance achieved by the writer. We do not accept the suggestion that the conclusion reached in the pre-sentence report was not justified by the earlier finding described in it. In any event, however, those criticisms were or should have been addressed to the sentencing judge. He was not bound to follow the report in any event. It was for him to reach whatever conclusions he deemed appropriate.[24]The judge closely examined the appellant’s previous convictions. He was extremely troubled by the earlier convictions of indecent assault and conspiracy to rob. He explained the route to his conclusion that imprisonment for public protection was required in a closely analysed, and meticulously considered analysis of all the relevant facts, including, of course, the hugely violent and persistent attack on Wales when he was utterly defenceless.[25]In our judgment, the order for imprisonment for public protection was fully justified. The appeal will be dismissed. Hamilton[26]This is a renewed application for leave to appeal against sentence, after refusal by the single judge.[27]On 27 January 2006 at Southwark Crown Court before His Honour Judge Lorraine Smith and a jury. Hamilton was convicted of three offences, attempt robbery (count one) possession of an imitation firearm at the time of committing an offence (count two) and robbery (count three). On 3rd April 2006 he was sentenced to concurrent terms of imprisonment for public protection, and after assessing the determinate sentence at nine years, a minimum term of four point five years imprisonment was specified in respect of each offence. 307 days already spent in custody were to count towards the sentence.[28]Karen O’Sullivan, the applicant’s girlfriend was a co-defendant. She was convicted of the same offences, and sentenced to three years imprisonment, with allowances made for the period spent on remand. In her case the sentencing judge expressly found exceptional mitigation features.[29]The facts can be briefly summarised. In the evening of 7 April 2005 the applicant went into a bookmaker’s shop in east London on three separate occasions. O’Sullivan was waiting inside the shop. She called him on her mobile phone when she considered that it was safe for him to enter. When he did so, he was wearing dark clothing and dark gloves. A hood covered his face and head. His track suit was worn inside out. He carried a stick inside a carrier bag to make it look like a gun. That is what the cashiers believed. They ran to a back room and locked the door. They then called the police. While they were in the back room the applicant tried to kick the door open. This incident was recorded on CCTV, and the judge, who saw for himself the degree of force used by the applicant, was later to speak of the applicant “assaulting” the cashier’s kiosk. The applicant was still in the area when the Police arrived. He told them that he had been in the bookmaker’s shop when the attempted robbery took place, and he identified a local drug user as the person responsible as a local drug user.[30]The offence in count three was committed at about 9.25pm on 28th May 2005 at another bookmaker’s shop in east London. About one and a half hours before the robbery the applicant and O’Sullivan had been in the shop. The applicant left. He then returned to the shop after he was telephoned by O’Sullivan. The staff were cashing up. He was wearing two hooded jackets with hoods up over his face, and a baseball cap underneath. A scarf covered the lower part of his face. He approached the counter with a carrier bag. Although it was not clear whether it contained a stick as used on the previous occasion, the judge found that the applicant threatened to shoot the cashier if he did not hand over the money. He was given £1,130 in cash.[31]The applicant was arrested three days later. One of the cashiers recognised him. He had known him since school days, and saw him in the shop shortly before the robbery. The applicant denied the robbery. When interviewed he made no comment.[32]His defence to each count was mistaken identity. He did not give evidence. He was convicted.[33]At the time of these offences the applicant was 28 years old. He had a number of previous court appearances, but only one previous specified violent offence, affray, committed in February 1996. He was sentenced to three months in a young offender institution. We note that he was subsequently sentenced to more than one custodial sentence, including a four year sentence for offences of burglary.[34]The court was provided with many reports. We need only refer to the more striking features. The appellant’s IQ level is very low indeed, and tests suggest moderate learning disability. It appears that the applicant also suffered a severe head injury in September 2000 when he was struck over the head with a baseball bat. This had produced headaches, possible blackouts, and complaints of panic attacks and paranoid feelings. In the pre-sentence report, notwithstanding the trial, the applicant admitted his guilt, and blamed his co-defendant both for the offences, and for his insistence on a trial. The pre-sentence report addressed the risk of offending, identifying an escalation in seriousness which caused concern for public safety. There was a medium to high risk of the applicant committing similar offences in future, particularly if he became involved with others.[35]Passing sentence, the judge observed that he was required to assume that there was a significant risk to the public of serious injury being caused by the applicant, but he went on “in your case there seems to me to be clear evidence of that risk, not only from the nature of the offences and the way you carried them out, as I have seen on the CCTV, but the fact that you repeated the offence weeks later”. He examined the various psychological reports and the single psychiatric report, as well as the pre-sentence report. Taking all the evidence into account he concluded that it would not be unreasonable to apply the statutory assumption.[36]Two grounds of appeal were advanced; first that imprisonment for public protection was wrong in principle, and second, disparity.[37]The essential argument in support of the first ground of appeal was that the judge was unreasonable to conclude that the assumption in s229(3) was not displaced. In particular, the applicant’s record showed only one previous specified offence, some years earlier. He was a man with considerable intellectual problems. He may have been influenced by his co-accused. However that may be, we can see no reason for interfering with the conclusion of the judge. It is perhaps worth noting some of the relevant features of these offences. They included a level of premeditation and planning of the offences: the threat to shoot a cashier: the level of aggression visible on the CCTV when the applicant attacked the cashier’s kiosk: the failure of the first robbery, which was followed by the second robbery a few weeks later; the significant record of offending, although the judge accepted the single specified offence was, in relative terms, of some age: and finally, the observations of the probation officer, that the applicant was a man of very low intelligence who could easily be led to commit serious offences.[38]In our judgment, after a careful analysis of all the relevant features of the case, and the information before him, the judge was entitled to conclude that the statutory assumption was not displaced. This submission fails.[39]The disparity ground can be dealt with shortly. Karen O’Sullivan pleaded guilty. She had no previous convictions. She gave evidence before the judge, and he accepted that she had been subjected to considerable violence from the applicant, which was why she was lead, at the age of 37, to commit these offences he found that she was a “compelling” witness.[40]It was submitted that on behalf of the applicant that there were good grounds for doubting the account of the relationship given by O’Sullivan. She told us, and we accepted from her, that she had seen correspondence between the applicant and O’Sullivan following their arrest, and while he was in custody. She wrote to him in affectionate terms, expressing the hope that they would meet again, and even referring to the possibility of marriage. O’Sullivan was sentenced separately from the applicant, on the next day. If they had been sentenced together, the judge would have had a fuller picture of the relationship. The applicant now has a justifiable sense of grievance because O’Sullivan received a very substantially lower notional determinate sentence on what was a false basis. Accordingly the sentence should be reduced.[41]In our judgement the judge was entitled to conclude that a sentence of imprisonment for public protection on O’Sullivan would be inappropriate, and the determinate sentence reflected his assessment of her culpability. It was open to him to pass a merciful sentence on her, but there is force in the submission that the notional determinate sentence of nine years imprisonment on the appellant was somewhat excessive in all the circumstances, and bearing in the mind the information we now have about his continuing relationship with O’Sullivan.[42]This application is allowed. The appellant, as he now is, waived his right to be present. We shall reduce the notional determinate sentence on him to seven years imprisonment. The minimum term will therefore be three and a half years imprisonment, with the 307 days already spent in custody to count towards the sentence. Lawton[43]This is an appeal against sentence with leave of the single judge.[44]On 8 July 2005, at Rotherham Magistrates Court, Lawton pleaded guilty to two offences arising out of an incident on 24 June 2005, namely criminal damage, and arson, intending to destroy or damage or being reckless where property would be destroyed or damaged. The first charge alleged that the appellant damaged two windows, to the value of £500, and the second that he set fire to furniture and furnishings in the same property, causing damage to the value of just over £550.[45]He was committed for sentence to the Crown Court at Sheffield on 3 October 2005. He was sentenced to imprisonment for public protection for the offence of arson, with a minimum term to be served fixed at two years, less 87 days served on remand. No separate sentence was imposed in relation to criminal damage.[46]The single issue on appeal is the order of imprisonment for public protection.[47]The appellant was born in June 1984. When he committed these offences he was 21 years old. He lived in privately rented accommodation with his girlfriend. He was not in regular employment and spent much of his time drinking. The complainant lived next door but one to the appellant’s sister, and there seems to have been some friction between them.[48]At about 8pm on 24 June the complainant and her eighteen month old daughter went out of their home, leaving it unoccupied. When she returned at about 11.30pm she found the police and fire brigade in attendance. They had extinguished a fire which had been started inside her home. Investigation revealed that the seat of the fire had been an armchair, and that the walls and curtains surrounding the chair were damaged. It was also noticed that a front window had been smashed.[49]The appellant was arrested on 30th June. When interviewed, he said that he had broken the window with a stone, intending to cause damage, and that he had started the fire with a cigarette lighter. He said that he knew that the property was unoccupied, and blamed his behaviour on the fact that he was drunk at the time, saying that he was then drinking 24 cans a day.[50]Further information about the offence emerged from the pre-sentence report. It was apparent that the appellant intended to cause the victim real distress. He waited at his sister’s home and watched the police and fire services arrive, and continued to observe the scene until the victim returned home.[51]The appellant had been before the court on a number of previous occasions. In August 2001, he was convicted of assault occasioning actual bodily harm. On this occasion the complainant and his girlfriend were walking home after a night out when they passed the appellant and four other men, one of them spat at the complainant’s girlfriend. When the complainant confronted this group, he was attacked. He was punched and kicked to the body. He suffered injuries which required hospital treatment. On 22nd October 2003 the appellant was convicted of two charges of common assault. The first involved an attack on a social worker by the appellant and his associates when they were asked to leave a hostel because they had been drinking. The second involved an attack on the complainant by the appellant during an altercation at a party. There was a further conviction of common assault, arising out of an incident in the summer of 2003, when the appellant attacked a male complainant with his fist. He caused the victim a bloody nose, together with grazes to the head and cut lips, in other words, actual bodily harm. The record therefore showed a pattern of violent behaviour related to alcohol abuse.[52]A report from a consultant forensic scientist addressed the issue of risk. It observed that the enduring consideration in the assessment of risk factors was the appellant’s mental impairment, which affected his judgment and reasoning. The writer continued that the major factor in the assessment of risk was the appellant’s “extremely heavy drinking”. He ended “It could therefore be said that Jamie Lawton continues to pose some risk to the public, although, looking at arsonists as a whole, he would not be in the highest risk group of that sub-set of the population”[53]The author of the pre-sentence report observed:
“Given the pattern of drink related offending I assess the risk of further offending at a moderate level. Should Mr Lawton complete a detoxification then it is reasonable to conclude that this risk could be lowered. His lack of awareness of the serious nature of arson is of concern in this case. I assess that the risk of him causing serious harm to the public as also being at a moderate level.”
[54]However, the report referred to the appellant’s activities after he had started the fire. It explained that this behaviour created concern because it appeared that he derived some satisfaction from his actions. The appellant lacked any insight either into the impact on the victim, or indeed to the possibility that neighbours may have been put in danger. He showed little remorse. He minimised the seriousness of the offence. His attitude demonstrated a serious deficit in his ability to consider the rights of others and that he poses a risk to all with whom he holds a grudge.[55]Passing sentence the judge observed the appellant’s serious problem with alcohol, and he concluded that when in drink, he was a man who acted without thought of the consequences. He rejected the possibility of a sentence of life imprisonment, but he then went on to observe that the circumstances justified an order of imprisonment for public protection. He concluded by repeating the appropriate words of the statute, rather than provide a detailed explanation of his reasoning.[56]It is submitted that his conclusion was wrong, and that the sentence accordingly was manifestly excessive. Mr Singh argued that the judge appeared to have based his conclusions simply on the circumstances of the offence, but that the facts did not warrant his conclusion. He cited to the relevant passages in Lang, and the absence of adequate reasons for the sentence’s conclusions.[57]In our judgment there was nothing in the evidence available to the judge to displace the statutory assumption in section 229(3). This arson was by no means his first offence. After his convictions for offences of violence, the fire he started in the victim’s home suggested a serious escalation, and his behaviour at the scene, continuing to observe it until the return of the victim, and his total lack of insight into the offences, demonstrate that there is no basis to justify interfering with the judge’s conclusion.[58]We recognise that the judge should have provided a more detailed analysis of the reasons for his conclusion, and have no doubt that if he had had the advantage of Lang (which had not been decided at the time of this sentence) he would have followed the guidance provided in that decision. As it is, notwithstanding the absence of reasoned sentencing remarks, the decision itself cannot be impugned on appeal. Accordingly the appeal is dismissed. Reference by HM Attorney General (Jones)[59]This is a reference under the Criminal Justice Act 1988 by HM Attorney of the sentences imposed on Andrew Jones on 5th June 2006 by His Honour Judge Cutler sitting at Winchester Crown Court.[60]The offender is 32 years old; a well built powerful man, who has made numerous previous court appearances.[61]On 20th March 2006, after a trial, the appellant was convicted of affray (count one) and attempted murder (count three). Sentence was adjourned for reports. On 5th June he was sentenced to six months imprisonment for affray, with a consecutive term of six years imprisonment for attempted murder. 279 days which the offender had spent in custody were ordered to count against the custodial term.[62]The facts of this offence are stark. The offender and the victim were in a relationship. They began to go out together in early 2003, and then lived together at an address in Hampshire. The offender was a domineering individual, who became very possessive and jealous of the victim. This eventually developed into physical and sexual abuse. In 2004 the victim became pregnant by the offender. For strong personal reasons, the pregnancy was terminated. The offender never forgave her.[63]In late July or early August 2005, after an argument between them in the presence of others, the victim, for the first time, complained of the offender’s treatment of her and alleged that he had raped her. She left the home she shared with him, and moved in with a mutual friend, with whom in due course she began a relationship. The offender was deeply mortified. He would not accept that the relationship had come to an end. He called at the address where she was living on a number of occasions, and behaved in an aggressive and threatening way towards her.[64]In the morning of 3 August 2005 the offender called at the victim’s address. At that time his father was seriously ill with cancer, from which he subsequently died. He did not want the victim to start a new relationship before his father’s death. However as he was about to leave the address, the offender said he wanted the victim to leave the area. He produced a screwdriver which he held to the victim’s throat. He was shaking with rage. The victim conceded that she would leave the area that day, and eventually the offender was calmed down. The incident was reported to the Police and the offender arrested. Following charge, he appeared before the court and was granted bail on condition that he did not contact the victim.[65]About a fortnight or so later, the victim saw the offender in a public house. Notwithstanding the bail conditions, the offender approached her, and began by apologising for the earlier incident. He tried to persuade the victim not to appear as a witness against him. Then he asked the victim about the plans for her imminent birthday, and asked her to return to him. She said that she needed time and space to think.[66]On the following day there were several calls between the victim and the offender, and they discussed her plans for that evening. When she arrived at the public house with her new boyfriend, the offender was waiting. He began by buying her a drink and wishing her a happy birthday. The victim and her new boyfriend left that public house and went to another. The offender accompanied them, and indeed at one stage the offender held the victim’s hand and asked her to go home with him. The group then returned to the first public house, and the offender continued his efforts to persuade the victim to spend the night with him. On arrival, the new boyfriend entered the public house first, and as the victim was about to follow him in, the offender grabbed hold of her and dragged her away towards the centre of the village. He was in an extremely angry and threatening mood.[67]Once in the village, the offender pulled his victim down a side road where he pinned her against a wall. He said that he had had enough, and that if he could not have her, then no one would. He threatened to kill her, and then to kill himself. He then threw the victim to the ground, and punched and kicked her. He then pulled her back to her feet, and said he would take her home and would rape her. He covered her mouth to stop her screaming. He then dragged her away in the direction of his home. The victim managed to break free of him and run away, but he chased her, and caught her, and then pinned her down in an area of bushes and scrub. The victim began to shout to attract attention and help. The offender put his hands around her neck. He strangled her into unconsciousness. Before she became unconscious, the victim felt him change his grip around her throat on three or four occasions, and before she lost consciousness, she hear the offender say “I am going to kill you first”. She felt as though her brain was about to explode. She collapsed into unconsciousness. As the judge put it, the offender left her for dead.[68]When the victim regained consciousness, the offender had disappeared. He had gone into a field nearby and taken an overdose of painkillers. He was admitted to hospital, and discharged himself the following day. He was arrested on 28 August. When interviewed he claimed to remember nothing of the events.[69]In the result, the victim survived, with only minor physical injuries. However the offences had a profound impact on her and, unsurprisingly she has experienced constant nightmares and been drained of confidence and self esteem.[70]The offender has appeared before the court on seventeen occasions since 1992. There are twenty seven previous convictions, mainly for relatively minor offences, but in 1999 he was sentenced to four months imprisonment for assault occasioning actual bodily harm, and in 2001, for the same offence, sentenced to six months imprisonment.[71]The reports available to the judge provided a history of severe behavioural disturbance by the offender when a child. As an adult he demonstrated traits of personality disorder. This made it difficult for him to sustain relationships. His relationships were characterised by jealousy, paranoia, infidelity, and at time violence. He resorted to excessive use of alcohol and deliberate self harm when things became difficult. A chronic risk of suicide was noted.[72]In relation to risk, the psychiatrist spoke of the increased risk of violence to those with whom he was in a relationship, and noted the use of violence on previous occasions. The criteria for detention under the Mental Health Act were not established, but there were clear indications of emotionally unstable personality disorder.[73]The pre-sentence report recorded that the offender told the author that he had never really forgiven the victim for her decision not to have his child. He had been “shattered” at the breakdown of the relationship, when he discovered that she was seeing a close friend. He denied being overly possessive or violent, and although admitting he had “probably hit”, the victim he denied attempting to strangle her or rendering her unconscious. The writer of the report formed the impression that the offender saw himself as much a victim of the breakdown of the relationship as the victim herself. He believed that the offender was “at a raised risk of level of causing harm”, adding that this would not be confined to harm within a relationship. The writer noted that the two previous convictions for violence occurred outside the domestic setting, and concluded that the offender was “at medium level risk of general re-offending”.[74]During the course of the hearing before sentence was passed, there was discussion with Judge Cutler whether the material in the report satisfied the criteria for “dangerousness”. The submission advanced by counsel for the offender was that the report did not directly address the issue whether there was a significant risk to members of public of serious harm, and it was submitted that the psychiatric evidence suggested that although there may have been an ongoing risk that the offender would harm himself, that risk did not extend to others.[75]In his sentencing remarks, the judge expressed himself “not satisfied that it is right that you are to be assessed as dangerous within the meaning of the section”.[76]The submission on behalf of the Attorney General is that the evidence in the case required the imposition of a sentence of imprisonment for public protection. There was no basis on which the judge could find that it would be unreasonable to make the statutory assumption. There was plain evidence of a significant risk of serious harm consequent on the commission of further specified offences. It was further submitted that the sentence of six years imprisonment was inadequate to reflect the seriousness of the offence and its aggravating features.[77]The essential features of the case can be summarised briefly. This was a case of attempted murder committed against a background of an abusive relationship in which the victim had already suffered from violence and abuse, and while the offender was on bail for a very frightening attempt to intimidate the victim through the use of a weapon. The motive for the offence was jealousy. The offender intended, and was convicted on the basis that he made a very determined attempt to kill his victim, continuing to throttle her while changing his grip on a number of occasions. He left her at the scene, believing that she was dead. As a result, the victim suffered, and will continue to suffer serious psychological problems. At the same time the offender with his emotional instability, shows no insight into his offending.[78]In this sad catalogue, it is difficult to find any mitigation, but we note that one of the offender’s former partners has written speaking well of him and his behaviour towards her during their relationship.[79]We have approached this Reference with great circumspection. Judge Cutler is an experienced, highly respected trial judge. However we cannot avoid the conclusion that this sentence was not merely lenient, as counsel for the offender concedes, but unduly so. On the evidence, this offender was properly to be described as dangerous for the purposes of section 225 of the 2003 Act. The conclusion was unavoidable, whether it was based exclusively on the two offences, committed within two weeks of each other, of which there was a single victim, a former partner, or whether by combination of those offences, with the earlier and relatively recent convictions for violence with strangers. In any event, it was not reasonable to conclude that the statutory assumption was displaced. An order for imprisonment for public protection will be made.[80]In our judgment the determinate sentence of six years imprisonment was also unduly lenient. The appellant was convicted after a trial of a serious and genuine attempt to kill the victim. No doubt the jury, considering his intention, was impressed not only by the fact that the appellant changed his grip on the victim’s throat more than once during the process of strangulation, but also by the fact that he literally left her for dead. In our judgment, however this case is approached, a determinate sentence of ten year’s imprisonment was appropriate. This produces a minimum term of five years imprisonment, with 279 days to count against the custodial term to be served. Gordon[81]This is a renewed application for leave to appeal against sentence after refusal by the single judge.[82]On 27 October 2005, having earlier pleaded guilty, he was sentenced at Sheffield Crown Court by His Honour Judge Goldsack QC to imprisonment for public protection, with a minimum term of two years, for an offence of wounding with intent.[83]The case is stark, but a brief summary sufficiently explains our conclusion. The applicant was drunk. He later said he could remember nothing of what happened. The victim of wounding was his girlfriend. He attacked her after an argument in the street. He used a pair of tree loppers and struck her with them a number of times. She suffered no fewer than thirty nine injuries, including some deep puncture wounds. Some of injuries showed a linear pattern consistent with blows by a blunt object. There were injuries to her limbs consistent with defensive injuries. Puncture wounds were found to the right side of her neck, right cheek and right side of the head. There was grazing, swelling and bruising to the lower left of her back, he left forearm, her forehead and her right cheek. It was a very severe attack, in the context of previous violence.[84]When interviewed, the applicant said that she had struck herself with the tree loppers, and he had to step in and slap her, to prevent any further self harm.[85]The pre-sentence report indicated that the applicant had considerable problems with alcohol misuse. In the opinion of the writer, he represented a high risk of harm.[86]The applicant had a number of previous convictions, one, an assault occasioning actual bodily harm, which took place some years ago, in 1991, but it too was an assault in a domestic context.[87]The judge concluded that the assumption under section 229(3) applied. He found that the criteria for a sentence of imprisonment for public protection were satisfied. Given the facts of the instant offence, and the dreadful determined attack on the appellant’s girlfriend with tree loppers, as well as the conclusions in the carefully prepared pre-sentence report, his conclusion was plainly right.[88]This application is refused.

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