Attorney-General's Reference No 44 of 2007 [2007] EWCA Crim 1530

Case No 200701980/A1[2007] EWCA Crim 1530
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 16th March 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE MITTING
THE RECORDER OF SWANSEA
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 44 OF 2007
(JOHN CHRISTOPHER MCNEICE)
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MR A DERBYSHIRE appeared on behalf of the ATTORNEY GENERAL
MR S MILLS appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]The Attorney-General seeks leave, under section 36 of the Criminal Justice Act 1988, to refer the sentence in this case to this Court on the ground that it is unduly lenient. We grant that leave.[2]On 27th February 2006 the offender pleaded guilty, at the earliest opportunity, to wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. Following preparation of a pre-sentence report, he was sentenced by Mr Recorder Hussain QC, in the Crown Court at Liverpool, to 8 months' imprisonment, suspended for 18 months, with a suspension period of 18 months. The Attorney-General submits that this sentence does not reflect the gravity of the offence.[3]The facts of the case can be summarised as follows. At about 10.30 on 31st July 2006 the complainant, a Mr Chris Walls, and his partner, Louise Gallagher, entered the Royal Oak public house, Waterloo, Merseyside. The offender, whom they both knew, was already there. About 10 minutes after they arrived Louise Gallagher approached the offender and remonstrated with him about his failure to pay back some money that he had borrowed from them about 2 years before. It was agreed between them that the offender would repay the debt of £120 at £10 a week. Miss Gallagher noted that the offender seemed quite drunk and a bit nasty compared to his usual self.[4]Shortly after speaking to Miss Gallagher the offender spoke to Mr Walls. He accused Mr Walls of saying things about him. The offender was not happy and told Mr Walls to get outside. The two men moved to the foyer of the pub, where they had a scuffle, which one of the bar staff described as "more verbals with a bit of pushing and shoving". They were quickly separated by others in the pub.[5]Mr Walls felt wound up and decided to go home, leaving Miss Gallagher behind. When he got home, he left his front door unlocked so she would be able to get in on her return. He got home at about 11.45, watched television for about an hour and then went to bed.[6]Some time after 2.00 am Mr Walls was awoken by a number of blows to his head. He looked up to see the offender, whom he recognised, standing over his bed, holding an egg-shaped wheel brace in his right hand which he was using to strike Mr Walls to the head and face. He was saying to Mr Walls:
"You didn't hurt me you fat cunt. You'll never hurt me you fat cunt. Just stay away from me."
The offender then left the house.[7]Mr Walls could feel blood trickling from a wound on the back of his head. He reached for his mobile telephone and called an ambulance. By the time of the arrival of the police, at about 2.50 am, Mr Walls was described as "covered in blood from his head injury". Mr Walls was taken to hospital by ambulance, and subsequent forensic examination revealed blood splattering next to the bed. Mr Wall suffered a 3-centimetre laceration to the left side of the head behind the left ear, a black eye, and bruising and tenderness beneath the left eye. There was also an area of swelling and bruising, between 3 centimetres and 6 centimetres in length, to his left forearm, which appeared to be a defensive injury. The head wound was closed under local anaesthetic with six stitches. There was no further evidence available to the sentencing judge concerning the impact of the offence on the victim.[8]The offender was arrested on 24th August at Copy Lane police station in Liverpool and interviewed later that day. In interview he accepted that he had been involved in a scuffle with Mr Walls in the pub but denied the assault in the house, saying he had driven straight home from the pub.[9]The offender was 36 at the time of the offence. He has two convictions for dishonesty and as a youngster, he was fined for criminal damage. The judge, rightly in our view, treated him as effectively of previous good character for the purposes of sentence.[10]The court had a pre-sentence report in which the author said that the use of a weapon and the premeditation involved were both aggravating factors, as indeed they were. But he nevertheless identified the offender as having a low risk of reoffending and recommended a community order. He said:
"...on entering the premises of the victim [the offender] maintains there was no clear plan in his mind. [The offender] relates how he hit the victim with a downward motion using the wheel brace to the head and that he was not 'in a rage' but had a degree of control over his behaviour, hence, he says, he was able to stop his actions before permanent harm was done, though how he was able to assess this in his inebriated state is unclear. The [offender] admitted his behaviour was 'disgusting', and for him, out of character, which, he says leaves him shocked as his potential to commit this kind of offence. He struggled to provide a motivation for his actions but says he wishes no ill harm to Mr Walls."
The author of the report described the offender as living alone in a flat rented from the local authority, and said that he needed help with motivation to find employment. He has a daughter aged 13 from a previous relationship with whom he has no current contact and he has no current partner. He described his life style as appearing to revolve around the routine of getting his benefit, managing his budget and occasionally socialising in local pubs. The author went on:
"Clearly [the offender's] risk of reoffending is linked in part to his alcohol use. Binge drinking on this occasion disinhibited his behaviour, and the altercation originated in a public house. In my opinion he needs to consider the link between his alcohol use, his life-style and the offence. [The offender's] actions in the commission of the current offence cannot be described as impulsive, a degree of thought appears to have gone into the behaviour... Under normal circumstance [the offender] is not a risk of harm to the public..."
[11]We have a supplemental report which is positive to the offender, and which Mr Mills strongly relies upon, Mr Mills having appeared before us for the offender as he did in the court below.[12]The following aggravating features are identified with the commission of this offence. First, the offender deliberately armed himself with a weapon. Secondly, he entered the victim's house at night as a trespasser, and third, he assaulted him whilst he was asleep. On the other hand, there was substantial mitigation, strongly relied upon by Mr Mills. First, his early plea of guilty. Second, his real remorse. Third, that no permanent injury appears to have been occasioned to the victim. Fourth, that the offender is of effective previous good character.[13]The judge in his sentencing remarks does not appear to have appreciated that it is an element of an offence under section 18 of the Offences Against the Person Act 1861 that the perpetrator intends to cause the victim really serious injury.[14]Mr Derbyshire, who has appeared for the Attorney-General, submits that the sentencing remarks appear to indicate that the judge had the various relevant features of the offence in mind, but simply failed to take the right starting point, which was a substantial sentence for what, on any view, was a very serious offence.[15]The judge said that clearly the offence passed the custody threshold. He said:
"On the one hand, you say you were drunk, on the other hand you say the delivery of the blow was controlled. It is difficult to imagine someone who is drunk being able to control but, be that as it may, the fact is that your previous background clearly shows that you need assistance from the Probation Service."
[16]Unfortunately, the judge having decided to take what was on any view a totally exceptional course in this case was not referred to and did not invite counsel to refer him to any of the material authorities. We however have been referred to three authorities by Mr Derbyshire. Each of the three is an Attorney-General's Reference. The first is Attorney-General's Reference Nos 59 and 60 of 1998 (R v Goodwin & Ors) [1999] 2 Cr App R(S) 128. The Court was dealing in particular with young offenders in that case but it is observations with regard to section 18 offences of this kind that is of particular relevance. At page 130 Lord Bingham CJ said:
"An offence against this section [referring to section 18] has always been regarded as of great seriousness, reflected in the maximum penalty of life imprisonment. The reason is obvious. Not only must there be proof of grievous or serious injury, but that injury must have been caused intentionally or deliberately. There is an obvious contrast with section 20 of the same Act. Under that section the same injury must be proved, but the commission of the offence does not depend on proof of intention to cause it. The difference lies in the criminality of the defendant's intention. That is a significant difference, reflected in the maximum penalty of five years' imprisonment on conviction under section 20. The seriousness with which section 18 offences are regarded is evident not only in the severity of the potential punishment but also in the fact that a section 18 conviction ranks as 'a serious offence' for the purposes of section 2 of the Crime (Sentences) Act 1997. The consequence of that is that a second conviction of "a serious offence" obliges the court, in the absence of exceptional circumstances, to impose a sentence of life imprisonment. It is true to say that all offences against section 18 are serious because they involve the deliberate or intentional causing of serious injury. But as with any other crime, some instances are more serious than others: the use of a firearm, a razor, a knife, a broken bottle, a club, a baseball bat, or a pick helve, or something of that sort, has usually been held to aggravate the offence. The courts have also, however, been obliged to recognise that injuries of almost equal seriousness can be caused by kicking with a shod foot or biting. It is also of course possible to inflict serious injury with the bare fist, although this is usually regarded as less serious, partly because in that instance the offender may lack the premeditation usually shown by a defendant who has armed himself with a dangerous weapon. Perhaps the least inexcusable example of an offence against section 18 is where a defendant entitled to defend himself responds with unreasonable and excessive force directed against an aggressor. Even then a custodial sentence, probably of some length, will usually be appropriate. In any other case a custodial sentence will almost invariably follow. In sentencing young offenders the court will of course have regard to the welfare principle expressed in section 44 of the Children and Young Persons Act 1933: the younger the offender the less the justification in any ordinary case for treating the offender exactly as if he or she were an adult."
Then a little later:
"Sentencers must, however, always bear in mind that the welfare of the young offender is never the only consideration to be taken into account. When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra judicially the punishment which the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim's wounds, there can be little doubt that inadequate punishment adds insult to injury."
The offender in this case is, of course, not a young offender, being 36 years of age.[17]The next case to which we were referred was Attorney-General's Reference No 1 of 1995 (R v David James Henry) [1996] 1 Cr App R(S) 11. In that case the Lord Chief Justice, Lord Taylor of the Gosforth said that, at page 13:
"However, we wish to stress that anyone who breaks into to someone else's house in the middle of the night, with the intention of inflicting grievous bodily harm, particularly if he takes others with him and has weapons, can expect to receive a substantial sentence. An offence of that kind is outrageous."
[18]That case is different from the present case because there were several defendants who entered the house. However, it is plain that the court concluded that the appropriate sentence there would have been six or seven years, with some credit for the plea of guilty. But the inference is that the starting point would have been in the region of 8 years' imprisonment.[19]The final authority is the Attorney-General's Reference Nos 43 & 44 of 2002 [2003] 1 Cr App R(S) 72. In that case, Kay LJ, giving the judgment of the Court, expressly followed the earlier decision in Henry as opposed to another authority which appeared to be in conflict with it, and 3 years' imprisonment for aggravated burglary and wounding with intent to cause grievous bodily harm imposed for attacking a man in his own home with an iron bar was increased to a sentence of 7 years. It is not very helpful to go into the particular circumstances of that or any other case; suffice it to say that fortunately in the present case the injuries were not of great gravity, and the offender was acting on his own.[20]In our view, it is difficult to envisage circumstances in which an offence under section 18, involving as it does the specific intention to cause the victim really serious injury will not require an immediate prison sentence of significant length. More especially, when the attack occurs at night, in the victim's house, which the offender has entered as a trespasser. There was, as we have pointed out, considerable mitigation in this case, not least the offender's early plea of guilty. In our judgment, at the point of sentence, the circumstances of this case, taking into account the aggravating factors and the mitigating factors, warranted a sentence of 4 years' imprisonment. We have, of course, to take into account double jeopardy, which is of particular relevance in this case because the offender has served nearly 2 months of a suspended sentence and, importantly, is not already in custody. So it is not a case of just increasing an existing sentence of immediate custody. Taking those factors into account, we think that the sentence that ought now to be imposed is one of 3 years' imprisonment. We accordingly make that order.

LORD JUSTICE SCOTT BAKER: What is the position about surrender?

[22]MR MILLS: His local police station is Copy Lane police station.

LORD JUSTICE SCOTT BAKER: When should he surrender by?

[24]MR MILLS: Your Lordships normally allow 48 hours.

LORD JUSTICE SCOTT BAKER: I do not think we do necessarily. He is not in court at the moment, is he?

[26]MR MILLS: He is not, my Lord, no.

LORD JUSTICE SCOTT BAKER: But he is aware of today's proceedings?

[28]MR MILLS: He is obviously realistic as to what is likely to happen.

LORD JUSTICE SCOTT BAKER: Why should he not surrender by 7.00 pm this evening?

[30]MR MILLS: I am sure he could, and what I know of this particular man, I am sure he would. If your Lordship would allow him 48 hours I ask for that on his behalf.

LORD JUSTICE SCOTT BAKER: Is there any particularly reason why you are asking for 48 hours?

[32]MR MILLS: It simply may well been the time period that has been communicated to him because of the understanding I was under. But, as I say, obviously I have been misled.

LORD JUSTICE SCOTT BAKER: Mr Derbyshire, have you any observations?

[34]MR DERBYSHIRE: My Lord, none. I can suggest a possible compromise, which is noon tomorrow, which would allow him some time to make preparation.

LORD JUSTICE SCOTT BAKER: We are going to say noon tomorrow. The sentence will begin to run from his surrender. We direct that he surrender to Copy Lane police station, which is -- I am told it should be Southport police station; that is a 24-hour police station.

[36]MR MILLS: My Lord, I will convey that.

LORD JUSTICE SCOTT BAKER: Surrender to Southport police station, Albert Road in Southport. Copy Lane is not necessarily open all the time. He is to surrender by midday tomorrow.