Attorney General's Reference No.61 of 2007 (Madden) [2007] EWCA Crim 2215

Case No 200702784/A2[2007] EWCA Crim 2215
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 4th July 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE MCCOMBE
MR JUSTICE FIELD
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 61 OF 2007
(MICHAEL MADDEN)
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MR M FENHALLS appeared on behalf of the ATTORNEY GENERAL
MR R MAIRS appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE HOOPER:

[1]The Attorney-General seeks leave to refer to the Court of Appeal a sentence which is said to be unduly lenient. We grant that leave.[2]The offender is Michael Madden. He is 31 years old. On 21st March 2007 he was found guilty of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. The case was adjourned for a pre-sentence report to be prepared. On 3rd May 2007 the offender was sentenced to 3 years' imprisonment by Miss Recorder Danji, sitting at Bradford Crown Court.[3]In summary, on Sunday 22nd January 2006, the offender and the victim were drinking in a public house in Huddersfield. A fight broke out inside the pub, although it did not involve the victim. Both the offender and the victim came to be on the pavement outside the public house. The offender armed himself with a 12-inch carving knife and used this to stab the victim in the face in a downward motion. We have seen the photograph: it was a deep slashing wound to the side of the nose. There is no doubt, and this is not disputed, that the attack was entirely unprovoked.[4]The facts in more detail are as follows:(i) On the evening of 22nd January 2006 the victim, Joseph Rainey, went to Huddersfield and met up with two friends. He drank four pints of lager in two different public houses before the three men went to the "Ivy Green" public house at about 10.00pm. While there he drank a fifth pint. He considered that he was sober and stated that this was not a large amount for him to drink.(ii) When he went to order a further pint, the barmaid asked if he was with 'the other two' referring to his friends. He confirmed that he was and she declined to serve him. As he went to leave the public house he made his way past a group of men who were fighting and went outside onto the pavement.(iii) The victim noticed the offender approaching him along the pavement. The offender swung at him with his arm, connecting with the victim's nose and he felt a great deal of pain. In fact he had been stabbed and his nose began to bleed heavily.(iv) An independent witness, Anne Hirst, saw the offender walk towards the pub carrying a large carving knife with a 12' blade. She saw him raise his knife above his head and attack the victim, striking him in a downward direction to his face.(v) The victim describes how he moved away, but was followed by the offender who continued to challenge him to fight. He phoned the police who arrived swiftly.(vi) Anne Hirst saw the offender being arrested by the police. She later identified the offender at an identification parade.(vii) Two independent witnesses, Peggy Callaghan and Pauline Cadogan, who were passing in a car saw a man walking away holding a knife with a 12" blade concealed behind his back. Neither they nor the victim were able to identify the offender.(viii) The victim received a 6cm laceration to the left nostril and septum of his nose. He went to Huddersfield Hospital where he received emergency treatment including 12 sutures administered in two layers, one internally and one externally.(ix) The offender declined to answer questions when first interviewed on 23rd January 2006. He was re-interviewed on 22nd September 2006, when he admitted that he had been involved in a disturbance, claimed that he had been assaulted and then declined to 'go into any more detail'. He denied carrying or using a knife.(x) The offender has two previous convictions. The first is for an offence of wounding contrary to section 20 of the Offences Against the Person Act 1861, on 25th June 1996. The second is criminal damage on 22nd October 2002. The facts of the 1996 wounding were described to the sentencing court by prosecution counsel as follows:
"The offender had been outside a public house when he hit a man on the head with a bottle. The bottle did not break but the blow knocked the victim to the ground. The offender then punched him repeatedly in the face. The victim suffered a cut to the rear of his head and to his lip."
We note that the offender was in the Army at the time of the section 20 offence.[5]The offender continued to deny his role in the offence to the author of the pre-sentence report. He claimed that the victim and his friends were troublemakers and, while he accepted fighting, he had no recollection of hitting the victim. He continued to deny that he had ever carried or used a knife. The author concluded that the offender posed a medium risk of harm. No mitigation was advanced suggesting the victim himself had provoked the attack.[6]In the submission of the Attorney-General there are four aggravating features:(i) The offence was to some degree a premeditated attack, in which the offender used a knife, which he had no lawful excuse for possessing.(ii) The offender raised the knife above his head and struck the victim in the face, where it was likely to cause significant and lasting damage.(iii) The attack was unprovoked, late at night, and in a public place.(iv) The offender has a previous conviction for unlawful wounding in similar circumstances. We agree.[7]The following mitigating features are, in our view, present. First, the offender has served in the British Army and has served his country well in Bosnia and other places. We have been provided with a number of excellent character references. Those who write the references speak highly of the offender, both as a soldier and as a human being. In one of the references it is said:
"If it was not for the fact that Pte Madden was leaving the Army to pursue a Civilian Career, I do believe that in a few years he would have made a strong and robust JNCO."
[8]Another reference written by a Major refers to Private Madden as "a fine soldier, by far the best in the company and one of the most talented I have worked with."[9]Another testimonial states in part:
"As an Infantryman he has demonstrated the ability to work in conditions of personal discomfort, often in difficult and sometimes dangerous circumstances. In all situations he has proved to be reliable and dependable. He has the ability to successfully absorb detailed theoretical information and perform important practical skills as part of a team."
He is described as "robust, fit, with strong leadership ability and a degree of technical aptitude."[10]It is also important to note in mitigation that there has been almost a period of 10 years between the serious offence of violence to which we have referred and this offence. The Attorney-General draws our attention to the case of Attorney-General's Reference No 18 of 2002 (Christopher Simon Hughes) [2003] 1 Cr App R(S) 9 and particularly at paragraph 21, where the then Vice-President, Rose LJ, said that the sentences for offences against section 18 involving a knife, would normally be within the bracket of 3 to 8 years.[11]We also looked at Attorney-General's Reference No 138 of 2006 [2007] EWCA Crim 1077. In that case the offender, who was aged 20, with no previous convictions and a good character, stabbed the victim twice, once in the right arm and once in the left side. The second blow was administered with such force that the knife became embedded in the bone and had to be surgically removed. In the view of the Court, the appropriate sentence, after a trial, would have been approaching 6 years' detention.[12]In passing sentence on the offender in this case

the judge said:

"You have been found guilty of unlawfully and maliciously wounding Joseph Rainey with the intent to do him grievous bodily harm. On 22nd January 2006, you used a knife to slash his nose causing a 6cm laceration as a result of which he required twelve stitches. As you know this is a serious offence. You caused very significant injury to the victim in the nature of the offence, namely street violence involving the use of a knife, is also one which the public are rightly very concerned about and the incident must also have caused distress and fear to those people who witnessed it. I have taken into account what is known about what happened that evening including the fact that you too had been struck a blow. I have also noted the role that alcohol appears to have played in this offence and that you seem unable to recall exactly what happened, but that is, of course, no comfort to the victim or to the public, nor does it excuse what you did. I have taken into account all that has been said in your favour in a pre-sentence report and in Court today in relation to the circumstances of the offence and in relation to your personal and your work life. I have also noted in your favour what has been said about your attempts to avoid further trouble since the offence by moving out of your area and that there have been no difficulties since the date of the offence. These factors do weigh in your favour. I have taken particular note of the dossier containing your qualifications and references. These are clearly quite a large number of people who think very highly of you and some of the references, particularly from your time in the Armed Forces, are excellent. I have taken these into account in your favour but would also venture to say that it is a great shame for someone with your skills and potential to engage in criminal behaviour regardless of the circumstances and I very much hope you will conduct yourself in the future so as not to come before these Courts ever again. It seems to me that alcohol has played a significant part in this offence and I am surprised by the indication in the pre-sentence report that you are comfortable with your level of alcohol intake. I think this is something you ought to seriously rethink if you want to build a kind of positive life which people who know you best seem to think you are capable of. In considering the appropriate sentence I have taken into account your two previous convictions for offences. In particular the offence involving violence although I have taken into account, also, that that was over ten years ago. I do not propose to invoke the dangerous offender provisions of the Criminal Justice Act because I do not consider that there is a significant risk to members of the public of serious harm occasioned by further specified offences being committed by you. Nevertheless, as I am sure you have been told, your offence is so serious that neither a fine alone nor a community sentence can be justified. It is unavoidable that you must be sentenced to a term of imprisonment. This will be the very shortest which, in my opinion, matches the serious and circumstances of your offence and takes into account all the mitigating factors. The sentence I pass is one of three years' imprisonment."
[13]It is submitted that the sentence is unduly lenient having regard to the aggravating features of the case to which we have made reference. It is said that the sentence failed to reflect the gravity of the offence and the public concern about offences of this nature.[14]Mr Mairs, who appears for the offender, accepts that the attack was unprovoked, although he refers to the fact that there had been difficulty between two groups of people. Whether the victim was a member of one of those groups is not clear. Mr Mairs mentions that only to try to explain why the offender, given his record in the Army and the references to which we have referred, might have resorted to violence on this occasion.[15]Mr Mairs also points out that, although the injury was clearly a very serious injury, it was not of a life threatening character. It could, so he submits, have been far more serious than it was. He submits that we are entitled to take into account that the injuries were not as serious as they otherwise could easily have been.[16]It is submitted by Mr Fenhalls, on behalf of the Attorney-General, that the proper sentence in this case would have been in the region of 6 years' imprisonment. We agree with that submission. We quash the sentence that was passed and, giving a small discount for double jeopardy, we substitute for it a sentence of five-and-a-half years' imprisonment.