Attorney General's Reference Nos. 49 of 2008 [2008] EWCA Crim 2304

Case No 2008/03987/A9[2008] EWCA Crim 2304
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 8 October 2008
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE OWEN
and
MR JUSTICE CLARKE
____________________
ATTORNEY GENERAL'S REFERENCE Nos. 49 of 2008
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
__________________
- v -
Between
JORDAN BLAKE__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________Mr J Rees appeared for Attorney GeneralMiss K Dempsey appeared for OffenderJ U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer a sentence imposed by Her Honour Judge Dangor sitting in the Crown Court at Harrow on 27 June 2008. We grant leave.[2]The offender is Jordan Blake. He was born on 5 August 1991 and is now aged 17. On 4 April 2008, when he was sixteen years and eight months old, at the first opportunity, he pleaded guilty to an offence of wounding with intent contrary to section 18 of the Offences against the Person Act 1861.[3]There were two co-defendants, Tristan Dominique (aged 18) and Kane Dean (aged 16). They pleaded guilty to affray and were sentenced along with the offender. Dominique was sentenced to an eight month detention and training order; Dean to a six month detention and training order; and the offender (who was then just 17) was sentenced to a twelve month detention and training order.[4]The facts need some attention. It was 1.30am on Friday 16 November 2007 when the offender and his two friends, Dominique and Dean, went to a fast food restaurant in Finchley Road, London NW11. They ordered some food and paid for it. They were served by Mr Jabarkhil and Mr Haider. Dominique was unhappy about the quality of the chips he had bought. He demanded a refund. Mr Jabarkhil initially refused, but eventually refunded 50 pence on the advice of Mr Haider. Dominique demanded more money. That demand was refused. Dominique threw chips and a soft-drink can at Mr Jabarkhil. At this stage the offender played no part in this particular incident. The three of them were asked to leave. Mr Jabarkhil and Mr Sahar (the manager) attempted to usher the three youngsters out.[5]Mr Jabarkhil and Mr Sahar followed the three out into the street. Dominique turned on Mr Jabarkhil and started to punch him. Mr Sahar managed to drive Dominique away. With that Dean and the offender attacked Mr Jabarkhil. At some stage in the proceedings Mr Jabarkhil was punched a number of times by Dean. Much more significantly and more seriously, at the time or shortly beforehand the offender produced a kitchen knife. It had a blade of 8-10 centimetres in length. He stabbed Mr Jabarkhil a total of six times -- five times to his back near his right shoulder blade and once to the upper right side of his chest. Mr Sahar returned to Mr Jabarkhil and assisted him to get rid of Dean and the offender. Having been helped back inside the shop Mr Jabarkhil collapsed. He was seriously injured. The police and an ambulance were telephoned. A description was given via the emergency operator of the three young men who had been involved in the incident. All three were arrested nearby within a short time.[6]CCTV footage showed the offender throwing something into a bin at the corner of Finchley Road and Golders Green Road as he ran away from the scene. The kitchen knife, used to wound Mr Jabarkhil, still bore traces of his blood, when it was later recovered from the bin.[7]Mr Jabarkhil was taken to hospital. When he arrived he was found to have five stab wounds to the area of the right shoulder blade. In addition there was a single penetrating stab wound to the upper right chest, approximately three inches below and one inch to the right of the line of the right nipple. Twenty-five stitches were required to close up his wounds. The injury to the front of his right chest was serious. The knife had pierced the rib cage and penetrated down into the chest cavity. This caused internal bleeding and a collapse of the right lung. A blood transfusion was required. There were continuing concerns about significant bleeding through the chest drain that had been inserted. Mr Jabarkhil had to be transferred to University College Hospital in the afternoon of 16 November where the cardio-thoracic team took over his care. Thereafter he made a good recovery from his physical injuries. He was discharged from hospital six days later.[8]In his witness statement, made approximately four weeks after the attack Mr Jabarkhil said that he was still in severe pain and unable to sit or walk for long periods. He had not returned to work. According to his account he had suffered considerable psychological damage. He suffered from nightmares. He made a comment that he fled into this country as a refugee to save his life; yet on the night of the attack, as he saw the blood pouring through the wound to his chest, he thought that he would die.[9]The three offenders were interviewed later the same day. We need not trouble with the accounts given by the two co-accused, save that Dominique admitted that he had argued with, and thrown the chips at, Mr Jabarkhil, that he had run away when chased out of the shop, and that he had thrown a can of soft drink at the man who had chased him.[10]The offender made no comment to the questions that were put to him. As we have indicated, he pleaded guilty. A written basis of plea was submitted. This read:
"I accept that I was in the chicken shop with my two co-defendants. I was not involved in the initial argument with staff. I left the shop after everyone had gone off. I was grabbed around my neck by the victim and I accept that I stabbed him repeatedly. I do not accept that I punched him at all. After I stabbed him I ran around the corner. I am sorry for what I did. It's not like me. I regret I did what I did."
No Newton hearing was sought and none was required. The judge indicated that she would deal with the offender on that written basis of plea.[11]At the time of the offence the offender was 16 years old. He had a previous conviction from March 2006 when he was aged fourteen-and-a-half. He had pleaded guilty at the Youth Court to assault occasioning actual bodily harm and was sentenced to an eight month referral order and ordered to pay compensation.[12]A pre-sentence report was available to the judge. It contained an account of the incident given by the offender. It accurately recounted that the offender was not involved in the original argument. The offender asserted that Mr Jabarkhil had grabbed him and attempted to punch him. He cried out to his friends for help but they had not responded. He said that he felt in danger from the three adults who had been working in the food shop. He had then stabbed Mr Jabarkhil. He said that when this happened "everything happened so fast. I'm not sure what I was trying to achieve". He asserted that he had found the knife he used in the attack in a park earlier that day, but he could not explain in answer to the enquiries by the author of the report why he had kept the knife and why he had carried it with him at all. Indeed it is right to emphasise that it followed from the offender's account that he had chosen to take the knife with him when he left his home at around midnight to go and find the food.[13]Strong levels of remorse, self-loathing and insight were expressed in the interview. The report records that the offender had attempted to harm himself on three separate occasions after his arrest for this offence.[14]Although it is unnecessary to describe his home circumstances, it is right to record that the offender had experienced a very troubled upbringing. At school he was described as "resistant and sometimes disengaged but not obstructive". In September 2007 he began a National Vocational Qualification course in electrical installation. He was described by his course tutor as someone who had difficulty applying himself, but he was noted to be polite and pleasant.[15]A summary of the risk factors was made by the writer of the report. It concluded that the offender had a tendency to outbursts of anger which led to a loss of control when confronted with difficult situations. The offender was assessed as posing a high risk of harm, but with a medium risk of re-offending. It was believed that those risks could be considerably reduced by ongoing intervention and support from the Youth Offending Team.[16]We have gone through this information from the probation officer and through the offender's upbringing, background and the reports on him at the different places where he was educated because he is still a very young man.[17]The judge's sentencing remarks proceeded on the basis that the incident began because of an overreaction on Dominique's part. She then went on to identify the aggravating features of the offence committed by the offender who, she said, had appeared to panic. She said:
"This was a serious offence of wounding with intent. It was a wounding which included a weapon.... it was a weapon that was used six times and the result was that the victim lost 1.2 litres of blood, had to have a blood transfusion and his lung collapsed. You are fortunate .... that you are not looking at perhaps a murder; I mean it is really close enough to be really worrying. You have also as an aggravating feature the fact that you have a previous conviction for assault occasioning actual bodily harm but I have taken into account the fact that no weapon was used on that occasion." 18. "
I really had to start about thinking to lock you up for around two years because of the seriousness of the offence ...." But having taken into account the mitigating features, and in particular the youth of the offender, she imposed the sentence against which the Attorney General now appeals.[18]We are satisfied that this sentence was unduly lenient and significantly so. We recognise the mitigating features identified to the judge. The offender had a difficult familial background and problems at home, although it is fair to say -- and we are grateful to them for enabling us to say -- that his parents are here today in this very difficult environment for them, standing by him. He was sixteen-and-a-half years old. The judge focused on his youth. He had pleaded guilty at the first available opportunity. He expressed remorse for what he had done. That remorse was not only recorded in the pre-sentence report but also in his own letter written to the court in which he describes how sorry he is for what he had done. He acknowledged that the apology was late –- too late -- for his victim. It is fair to say that the offence was not one which started out at his behest; nor was it premeditated. But -- and it is a very important but -- he was carrying a knife. The result was that he inflicted injuries on his victim which carried significant risk. The attack was a sustained attacked; there were six separate stab injuries. All the injuries were to the torso. The offender was part of a group. The victim was providing a service to the public. The offender has, despite all the things that are said about him to his advantage, a previous conviction for an offence of violence.[19]Unhappily this offence is typical of many. In R v Blizard and Povey (21 May 2008) this court observed that carrying a knife or an offensive weapon without reasonable excuse was a crime committed far too often by far too many people. "Every weapon carried on the streets, even if concealed or out of sight, or not likely or intended to be used, or unused, represented a threat to public safety and public order. That was because even if the item was carried only for bravado or some misguided sense that it would be used for possible self-defence, there might arise a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial like a look, where the weapon was then produced and mayhem would follow, including offences of the greatest seriousness such as murder, manslaughter, causing grievous bodily harm and wounding".[20]The offender carried a knife -- an offensive weapon -– and, just as was forecast, when he became involved in this altercation, even assuming that he was wholly innocent before he became involved, he drew the knife he was carrying and he used it. As it happened, he used it on someone who had already been attacked by at least one of his friends and he caused that man very serious injuries.[21]There are a number of features of mitigation in this case. We recognise them and give due weight to them, as did the sentencing judge. In our judgment, however, the judge attached too much weight to those mitigating features. Let us repeat the message from this court: Those who carry knives in the street and then use them to wound and injure must expect severe punishment -- no ifs, no buts, no perhaps. We must do what we can to eradicate this dreadful knife problem.[22]The offender is young. The court does not have a free hand in the way in which it should deal with him. We have reflected on the available alternatives by way of sentence. We regard this as a grave crime for the purposes of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Notwithstanding the matters of mitigation which have been drawn to our attention, as they were to the trial judge, we have come to the conclusion that there must be a significant increase in the sentence to be served by the offender. We shall order that the sentence should be increased to reflect a custodial term of three years.

Cited in 2 later judgments