Attorney General's Reference No 130 of 2006 [2007] EWCA Crim 147

Case No 200606008/A6[2007] EWCA Crim 147
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 23rd January 2007
Strand
London, WC2
B E F O R E:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE GRAY
MR JUSTICE RAMSEY
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 130 OF 2006
(KATE ELIZABETH JONES)
Computer Aided Transcript of the Stenograph Notes of
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MR J LAIDLAW appeared on behalf of the ATTORNEY GENERAL
MR N GEDGE appeared on behalf of the OFFENDER
J U D G M E N T

SIR IGOR JUDGE: This a Reference, under section 36 of the Criminal Justice Act 1988, by Her Majesty's Attorney-General, of a sentence imposed on Kate Elizabeth Jones on 31st October 2006.

[2]The offender is now 23 years old. She was born in January 1984. On 27th September 2006, before His Honour Judge Furness and a jury, at Cardiff Crown Court, she was convicted of offences of causing grievous bodily harm with intent and assault occasioning actual bodily harm. Sentence was adjourned for the purposes of a pre-sentence report and on 31st October the offender was sentenced to a term of 2 years' imprisonment in respect of the section 18 offence, with a concurrent term of 9 months' imprisonment for the section 47 offence.[3]As to the section 18 offence, the victim of that offence was a man called Lee Moorland. The offender had pleaded guilty on an earlier occasion to unlawful wounding contrary to section 20 of the Offences Against the Person Act. The issue on which she stood her trial was whether the Crown proved the necessary intent.[4]So far as the assault offence was concerned, the jury acquitted the offender of unlawfully attempting to cause grievous bodily harm to the victim, a young woman called Jahrine Purser.[5]The facts of the offence are not complicated. We are concerned with an incident that occurred on 6th October 2005. The man, Lee Moorland, and the young woman, Jahrine Purser, went with a group of friends to watch a band playing at a nightclub in Cardiff. At about 10 o'clock that evening they were watching the main act and found themselves standing just behind the offender. She was behaving in a disgusting fashion, taking mouthfuls of beer from a bottle and spitting on the backs of those in front of her. She appeared to be drunk and unsteady on her feet and on a number of occasions she fell back or lent forwards, but in particular fell back into Miss Purser. Unsurprisingly Miss Purser asked her to be careful. The response from the offender was to become aggressive, shouting and swearing, calling Miss Purser among other epithets "a stupid bitch" and "a cunt". She then appeared to leave the immediate vicinity but she returned carrying a beer bottle. This was thrown, without warning, in the direction of Miss Purser. The bottle missed her but struck Lee Moorland in the forehead. He was in fact caused a very serious injury, but to begin with his injury was not apparent.[6]Indeed, he followed the offender to an area near to the entrance of the club, accompanied by Miss Purser and two other friends. The offender was in a corner of the room. Mr Moorland asked whether she had thrown the bottle. The offender became abusive and, in the course of an altercation, she pushed a lighted cigarette into the face of Miss Purser, making contact with her face, just below and to the left of her eye, then dragging the lighted cigarette down her cheek. Mr Moorland intervened to protect Miss Purser. He was head-butted to the forehead by the offender. She was then asked to leave the club. She did so. She was arrested by the police later.[7]Throughout the interviews she denied throwing a bottle and denied assaulting Miss Purser with a cigarette.[8]As we have indicated, Mr Moorland did not immediately appreciate the seriousness of the injury which he had suffered. In fact he had sustained a fracture to his skull and, as the X-ray photographs show, it was a very serious fracture. It was not until 17th October, after a bout of severe headaches and periods of dizziness, that he went to hospital. After that he underwent major surgery to repair a complicated fracture to the centre of his forehead. This involved the insertion of Titanium mesh and screws. He was off work for five weeks. He has permanent scarring across the top of his head, concealed by his hair when worn at normal length but apparent when his hair is worn short. He appears, fortunately, to have made a full recovery from the physical effects of the attack but he continues to suffer some psychological consequences: he is reluctant to go out; he has not returned to the nightclub in question and, as it is put, he finds himself more anxious than he was previously.[9]Miss Purser was left with a burn and a blister below her left eye. A scab which formed within two or three weeks of the incident had healed completely. In the end she did not pursue medical attention for her injury.[10]The serious nature of this case is readily apparent from the short narrative. The offender was behaving in an aggressive and unpleasant way. When she was called gently to order, she became violent. She armed herself with a bottle. She threw it. The jury found that when she threw it, she intended to cause really serious injury in what amounted to an unprovoked attack. Having used the bottle as a weapon, shortly afterwards she forced a lighted cigarette into the face of another victim. Serious injuries were caused by the misuse of the bottle. It is fortunate that the consequences of the use of a lighted cigarette as a weapon were not more severe. Altogether this was a serious offence.[11]The offender is a young woman of previous good character. The facts which we have endeavoured to narrate simply do not square with the very carefully prepared, thoughtful and detailed character references that we have received and which were before the judge.[12]Let me just quote one of them from someone who is a mature woman, who has known this young woman since she, the young woman, was 3 years old and herself works as an LEA adviser. She describes the offender as "vibrant, engaging and a talented girl with a big heart. Amongst her friends her generosity is legendary, whether in terms of her time or possessions. They also love her for her loyalty." Then omitting some further observations:
"one of her most engaging qualities is her self-deprecating sense of humour. In conversation about Kate, her teacher and I were agreed that she is a very clever girl, creative and imaginative. The potential in Kate is enormous. Given the right advice and support, she has a lot to give both to her immediate society and the wider community."
We need not quote any other of the relevant references but they do indicate that this is a young woman about whom very positive things can properly be said.[13]Again, we know and the reasons are not apparent from the pre-sentence report, nor, and we make no complaint about this, from what Mr Gedge has had to say on this topic, and we are not, for one moment, blaming her parents, nor her, this talented young woman is very seriously estranged from her parents. That is a great sadness. It is also unhappy to record that she was intelligent enough to have won a place at university but that was lost before this incident simply because she was unable, for whatever reason, to continue with it. It rather looks as though she ran into debt. But on the face of the reports we have seen, her inability to continue to complete her university course, to achieve an appropriate degree and then take her ordinary place in the community is an underachievment.[14]We have considered two reports on her since she has been in custody. The first report was prepared at a very difficult time. Indeed, as we understand it, the response which indicates a degree of concern about one particular incident arose because she had been told on that very day that her case would be referred to this Court. The latest report, on 21st January, that is to say a day or two back, describes her as extremely helpful and polite. She has been patient and understanding when seeking responses from the Legal Services Officer. She received some distressing news to which she reacted in a very much mature way. The recommendation, and it is a high recommendation, is that she should apply to become a member of the Resettlement Unit in the prison. This is an area within the prison where prisoners are expected to display a high level of responsibility and trust. They are not locked up. They are subject to far less supervision than normal. It is expected that she would behave in the appropriate manner expected of someone entrusted with a place on this unit. The report ends by describing her as "a well behaved polite lady who has been willing to work hard to change her behaviour and I feel deserves to be rewarded in due course for her efforts."[15]In dealing with the evidence from the prison, we have, of course, gone ahead. We have considered the pre-sentence report. That was silent about the circumstances of estrangement. It did not in truth take the case very much further forward.[16]We have, of course, closely examined the judge's sentencing remarks. He had presided over the trial and would have been well able to form his own view about the character, personality and attitude of this offender. We cannot discern in his sentencing remarks the reasons why this undoubtedly lenient sentence was thought by him to be appropriate. If the judge had identified any individual feature or features which had led him to that decision, we should, of course, have paid very close attention to it. In the end, the features which seemed to him to be most important, and understandably they were certainly of some importance, were the very many positive features of the offender's character set out in the references.[17]A number of sentencing decisions, sometimes described as "authorities", which they are not, were drawn to our attention. We have considered them. We have been invited by Mr Gedge to notice some of the differences between the individual cases drawn to our attention, and the features of this case. We do not find our thinking greatly illuminated by consideration of the previous decisions. They are fact specific. The facts in this case that we have a young woman who behaved in this extraordinary violent and dangerous way when she was in drink.[18]The final feature of the case which we attend to is this. We were asked to consider the possibility of reflecting on double jeopardy. We need not add to, nor attempt to describe the jurisprudence currently developing at a great rate on this topic. What seems to us to have some significance in this case, given that in particular that we are dealing with a young woman of good character, who by definition has never been to prison before and who has responded well to her sentence, now that she is well into it, is that quite apart from her date of release, she has already been told that she may -- nobody suggests she has been told that she will -- may be eligible for release in this coming June, on the usual Home Detention Curfew arrangements. That is a factor which we bear in mind in reflecting on the proper outcome of this Reference.[19]Our conclusion is this: the Reference is properly made. We have already given leave. This sentence was unduly lenient. We have tried hard to see whether there is any basis on which, given so much that could be said on behalf of the offender, we can avoid an increase in sentence. We cannot do that. We find ourselves in effect obliged by the circumstances of her behaviour on this sad night in October 2005 to say that the sentence imposed at the Crown Court must be increased. We shall raise it to the minimum level that we think appropriate given all the circumstances, and in place of the sentence of 2 years' imprisonment for the offence contrary to section 18, we shall impose a sentence of 3 years' imprisonment. To that extent, this Reference is upheld and the sentence increased.