Russell, R. v [2008] EWCA Crim 1328

Case No 2008/1855/A1[2008] EWCA Crim 1328
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 10 June 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE ANDREW SMITH
HIS HONOUR JUDGE LORAINE-SMITH
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DYLAN RUSSELL
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Turton appeared for Applicant
J U D G M E N T
[1]MR JUSTICE ANDREW SMITH: This application for leave to appeal against sentence has been referred to the court by the Registrar. The offences for which the applicant was convicted on 15th February 2008 and sentenced on 12th March 2008 were committed on 24th October 2007. That evening the applicant, then aged 15, went drinking with a group including his brother Michael Russell, who was then aged 19 or 20. During the evening the applicant had a fight with another youngster in a group called Whitworth and after that they went off to the house of a girl called Natasha Lee. There was more trouble between the applicant and Whitworth before the applicant left.[2]Before long the applicant returned with a machete. His brother Michael was there too. A number of the group came out of the house and the applicant struck one of them called Wayne Rogan across the back with the machete. No injury was caused and Wayne Rogan returned to the house and slammed the door. A glass panel of the door was smashed, but things then seemed to calm down.[3]After that Wayne Rogan came out of the house again and went up to Michael Russell, who by now had the machete. The applicant had a large knife. He slashed Rogan across the back of the neck with it, leaving a six inch gash. The Recorder of Middlesbrough who tried the case said when passing sentence that Rogan could have died but for the wonders of modern science and the wound "could so easily have severed his head from his body".[4]The applicant and his brother were tried for wounding with intent, affray and having a weapon in a public place - the weapon being the knife in the case of the applicant and the machete in the case of the brother. The applicant was convicted of all three offences and his brother of the latter two but not the wounding.[5]The Recorder of Middlesbrough sentenced the applicant for the wounding offence to detention for public protection with a minimum term of three years, less 32 days spent on remand, and did not impose separate penalties for the other offences. Michael Russell was sentenced to concurrent terms of 12 months' detention for the affray and having a weapon in a public place.[6]The Recorder concluded that there was a significant risk of harm to members of the public. In considering this he had had under the relevant statutory provisions to take into account all the information available about the nature and circumstances of the offence and might also take into account information about any pattern of behaviour of which the offence forms part and also any information about the applicant. It has been said that the court must be particularly rigorous before reaching this conclusion in the case of an offender who is not yet eighteen years of age, bearing in mind the hope that maturity will reduce the risk.[7]We have described the offending on 24th October 2007. The applicant had previous convictions but had not previously had a custodial sentence. The three previous convictions to which the Recorder referred when passing sentence are these. In October 2006 the applicant was convicted in respect of having a lock knife with him in a public place. In 2007 he had two convictions for assault occasioning actual bodily harm. One occasion was when, after a controversial incident on a football pitch, the applicant headbutted the victim and then having gone home returned to threaten others. The prosecution told the Recorder that the applicant had gone and collected a hammer and when sentencing the applicant the Recorder referred to the applicant using the hammer. It was disputed on behalf of the applicant whether in fact there was a hammer involved in that incident. The other occasion was when the applicant smashed a coffee table with a dumbbell and when told to leave the house he inflicted on his victim several blows to the head fracturing a cheekbone, as well as causing severe swelling and bruising. The point is taken on behalf of the applicant that in the sentencing remarks there is reference to the applicant beginning his attack with a dumbbell, but we have set out the facts more fully as we understand them to be.[8]There was a pre-sentence report which we commend for its clarity and straightforward language. The writer reported that the applicant still did not admit the offences for which he was to be sentenced, expressing the opinion that he was too scared to do so. She goes on to say that it appears that "at his young age he is totally incapable of understanding the enormity of the situation he faces" and that he is "a young man with little concept of how his behaviour causes and presents a risk to others". She observed:
" ... a pattern of escalating offending in terms of frequency and violence used. His offending is often fuelled by alcohol and his lack of comprehension of the risk he presents and his behaviour causes concern."
She writes this in relation to whether the applicant presents a significant risk of serious harm, that whilst he:
"... may be viewed as presenting a 'significant risk' given his convictions for violence, in terms of whether he meets the 'serious harm' criteria is, I believe, hard to ascertain"
. In fairness we observe that the writer recognises that the applicant has a supportive family, which is borne out by his parents' attendance at court today, and that he has a good work ethic. The work ethic also is borne out by the references that we have seen. This shows another, much better, side to the applicant than is displayed in these offences.[9]In sentencing the applicant

the judge said this:

"I have no choice whatever, even making every allowance for your years of 16, that you pose not only a significant but a serious and in my judgment very serious risk to the public, so far as one can presently say looking into the future, and it is for that reason that, as I interpret the ever increasing complex legislation which touches upon this area of the law, it is not only my duty but my judgment that you must go to detention for an indefinite period."
Although the Recorder does not recite in full the statutory language, we understand what he says as a clear conclusion that the dangerousness of the applicant was such that the statutory regime under sections 224 and following of the Criminal Justice Act 2003 was engaged. There was certainly material before the Recorder that justified this conclusion. We cannot accept that any misunderstanding with regard to previous offending vitiates that conclusion in any way and we refer to the observations in the pre-sentence report about an escalating pattern of offending as well as the horrific nature of the offence of wounding for which the applicant was being sentenced.[10]That conclusion leads to this question: whether an extended sentence under section 228 of the Act would be adequate for the purpose of protecting the public from serious harm occasioned by the commission by the offender of further relevant offences. It is not clear whether the Recorder did consider this. We are told by Mr Turton, who represents the applicant today, that the Recorder was led by prosecuting counsel to understand that having reached the conclusion as to dangerousness an indefinite sentence was obligatory. If that is what the Recorder was told it was wrong. At all events we must consider whether a sentence under section 228 would be adequate for dealing with the risk that the applicant presents.[11]There is a different regime laid down in these sections of the 2003 Act for offenders under the age of 18. The court will be cautious before being driven to conclude even in the case of a serious offence that it is necessary to crush the hopes of those so young. The applicant is clearly young and immature. He is potentially dangerous, as this offending demonstrates, but we cannot accept that an extended sentence under section 228 would not be adequate to manage the risk that he presents. Mr Turton, to whom we are grateful for his straightforward and realistic submissions, does not challenge the notional determinate sentence of six years that the Recorder rightly recognised would be appropriate in this case. We have to consider what is the appropriate extension period to afford additional protection to the public in the case of this applicant. It is our view that the appropriate extension period would be one of three years.[12]Accordingly we conclude that the appropriate sentence for the wounding in this case is an extended period under section 228, the custodial term being six years and the extension period being three years. In view of our conclusion of the adequacy of that sentence to deal with the risk that the applicant presents, we conclude that the sentence of detention for public protection was wrong in principle in failing to recognise the alternative sentence available.[13]There is a further minor point to which we should refer. The offence of affray of which the applicant was also convicted is a specified offence under the 2003 Act and it was therefore not open to the Recorder, having decided that the applicant does present the risk to the public that the statute specifies, not to pass either an extended sentence or an indefinite sentence. That matter should be corrected. The appropriate way of doing so, it seems to us, is to pass an extended sentence for that offence too, the custodial period being 12 months and the extension period being two years. That should be a concurrent sentence and does not affect the totality of the sentence passed upon the applicant.[14]Mr Turton recognises that we should deal with the appeal today. We therefore grant the application for leave to appeal against sentence. We allow the appeal to the extent of substituting for the sentence passed by the Recorder on the offence of wounding a sentence under section 228, the custodial term being six years and the extension period being three years, and passing on the affray offence a concurrent extended sentence, the custodial period being 12 months and the extension period being two years. To that extent we allow the appeal.

LORD JUSTICE HUGHES: Mt Turton, it was a Registrar's reference. Did he grant a representation order?

[16]MR TURTON: My Lord, yes.