Hutchison, R v [2008] EWCA Crim 1379

Case No 200801132 A2[2008] EWCA Crim 1379
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 17th June 2008
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE ANDREW SMITH
HIS HONOUR JUDGE MOSS QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
IAN ARMSTRONG HUTCHISON
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 B Douglas-Jones appeared for Applicant
J U D G M E N T
[1]MR JUSTICE ANDREW SMITH: The applicant was sentenced on 1 February 2008 to imprisonment for public protection, the minimum term being specified as three years and three months less time spent on remand. He pleaded guilty on 13 December 2007 to a charge of wounding with intent. That plea was entered on the fourth day of the trial. He pleaded at the plea and case management hearing to an offence under section 20 of the Act. His application for leave to appeal against sentence was refused by the single judge and he renews it.[2]The incident that gave rise to this offence took place near Westminster Cathedral on 3 July 2007. The applicant, who was aged 38 and was homeless and on the street, spent time with others in that area. He and his companions became involved in a disagreement with a Police Community Support Officer called Whitehead and a colleague of Mr Whitehead. It seems that the officers were seeking to move the group on. The police arrived and apparently calmed the situation temporarily. The support officers were returning to their van where the applicant made an offensive gesture. The support officers came back and confrontation resumed. The applicant believed that Mr Whitehead was extremely offensive about his mother, saying "I'm going to rape your mum. Is she still a whore at Kings Cross?". The applicant insists that those words were spoken.

The judge, in sentencing him, said this:

"I am not at all convinced that Mr Whitehead uttered the words that the defendant had said he uttered about the defendant's mother. If I were to be asked whether I am sure Mr Whitehead did not utter those words, I would say that I was. What however I am satisfied about is that at a very early stage the defendant became convinced that Mr Whitehead had been insulting of his mother."
[4]The applicant went to a nearby hostel and got hold of a knife, apparently one with a broken blade, and returned to the Victoria Street area. He saw the van of the officers including Mr Whitehead stopped in traffic. He went to the driver's window, leaned in and stabbed Mr Whitehead several times in the chest area. Fortunately, Mr Whitehead was wearing a stab-proof vest. His injuries were a cut to a thumb, a cut to his right forearm and a cut near the right nipple.[5]The applicant phoned his family in an emotional state. He referred to the remark that he believed Mr Whitehead had made about his mother. Later the police arranged for him to surrender, and again he referred to the remark about his mother.[6]The applicant left the army in the mid-1990s and since then has had a troubled life and at times used drugs, including cocaine, heroin and ecstasy. A psychiatrist concluded that he suffers from generalised anxiety disorder, a mental illness but not one suitable for treatment under the Mental Health Act. He has previous convictions. They include possessing an offensive weapon in a public place and an assault occasioning actual bodily harm in 2002, for which received a 12 month custodial sentence.[7]The applicant fell to be sentenced under the regime for dangerous offenders under Part 12 Chapter 5 of the Criminal Justice Act 2003. He does not seek to appeal against the imposition of imprisonment for public protection. His complaint is about the minimum term, and the main focus of that complaint is that the judge stated that he was sure that Mr Whitehead did not use the words of which he complains. It is said that the judge, having held no Newton hearing, was wrong so to express it himself and it is said that, even if this court does not reduce the minimum term to be served, it should "substitute for the sentence imposed a like sentence passed on a correct factual basis".[8]The judge had been invited to hear evidence about whether the remark had been made. He declined to do so, indicating that it would make no difference to his sentence. As we read his sentencing remarks, he abided by that indication. He sentenced the applicant on the basis that he, the applicant, genuinely believed that the remark was made. The judge went out of his way to explain that that did not involve a finding that the remark had in fact been made. It was unnecessary for him to state that he was sure that it had not been. He had not heard evidence from both sides of the story about that, and it would have been preferable if the judge had recognised that he was not in a position to make that finding. But we cannot accept that that observation in any way affected the sentence that he imposed. It is not the function of this court to review incidental remarks made by the sentencing judge which did not affect the sentence.[9]Mr Douglas-Jones, who has stated the position for the applicant with persuasive moderation, states that the purpose of the application is to protect the applicant from having the Parole Board proceed on a false basis. He urges that we should reduce the sentence to mark that criticism of the judge's observation, or that the point could be made by quashing the sentence and imposing a like sentence.[10]In view of the finding of genuine belief made by the sentencing judge, and in view of what we have said in this judgment, we cannot see that the observation now prejudices the applicant or that the course urged by Mr Douglas-Jones is necessary or appropriate, even assuming that we have jurisdiction to take it. There is no basis for concluding that the minimum term was excessive. The Sentencing Guidelines Council, admittedly in guidance published after the applicant was sentenced but reflecting good sentencing practice at the relevant time, suggests a sentencing range of seven to ten years' custody for "premeditated wounding or GBH involving the use of a weapon acquired prior to the offence and carried to the scene with specific intent to injure the victim but not resulting in life threatening injury or particularly grave injury". It is true that the perceived provocation is a mitigating feature which might in itself justify a sentence towards the bottom of the range. Against that it is also relevant that the attack was upon a Community Support Officer and the applicant's record was a further aggravating feature. A starting point of seven years, which was the judge's starting point for the notional determinate sentence before credit for the very late plea, is not excessive. He reduced the notional sentence by six months to give credit for the plea, and in the circumstances no complaint can be made about that. There is no proper basis for us granting this renewed application and it is refused.

LADY JUSTICE HALLETT: Thank you, Mr Douglas-Jones. Despite the fact that you have not got your leave, given that you have appeared before us in the best traditions of the Bar in the interests of your lay client, if we have the power to make a representation order to cover your attendance today, we would do so. You will have to discuss that with the Registrar. You had the liberty of the subject very much in mind and were prepared to come along and argue the matter pro bono, but we think that if the public purse can stretch to paying you, it should.

[12]MR DOUGLAS-JONES: My Lady, I am obliged. Thank you.