Attorney General Reference No 6 of 2009 [2009] EWCA Crim 1132

[2009] EWCA Crim 1132Case No 2009/0587/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 17 March 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE PENRY-DAVEY
HIS HONOUR JUDGE RADFORD
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 6 OF 2009
Computer Aided Transcript of the Stenograph Notes of
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Mr L Mably appeared on behalf of the Attorney General
Miss M Sikand appeared on behalf of the Offender
J U D G M E N T

LORD JUSTICE THOMAS:

[1]The Attorney General has referred to this court through the Solicitor General under section 36 of the Criminal Justice Act 1988 a sentence passed on a young offender, DR, on 9th January 2009 at the Inner London Crown Court by Mr Recorder Julian Malins. The offender, who at all material times was aged 17, pleaded guilty on 12th December 2008 to two offences. First, wounding with intent contrary to section 18 of the Offences Against the Person Act 1861, and secondly, to having an offensive weapon, namely a knife, in a public place, contrary to section 1 of the Prevention of Crime Act 1953. The Recorder imposed a community order of 18 months' supervision, 100 hours unpaid work and a six month curfew from 9 pm to 7 am. We grant leave.[2]The facts can be briefly summarised. Mr Henderson, then aged 19, met a group of friends at London Fields in East London. They had agreed to play football in this public place against another group of young men on 1st October 2008. The game started at about 5.15 pm. Mr Henderson noticed the offender sitting on a bench. The other group of men appeared to know him and asked him to join in the game of football. About 10 minutes later Mr Henderson brought the game to an end when he saw how badly his own team was playing. He kicked the ball away. As Mr Henderson walked away the offender called him a 'dickhead' and then they traded abuse, the details of which it is unnecessary to set out, standing about 10 feet apart.[3]The offender then put something into his pocket as they continued to trade insults. Mr Henderson then said words which in effect challenged the offender to a fight. As they walked towards each other Mr Henderson noticed that the offender was holding a knife. It was in fact a multi-tool pen knife with a three to four inch blade. Mr Henderson thought the offender was just showing off. He stood with his arms out by his side. The offender said to him:
"You think I won't stab you."
The offender then lunged at Mr Henderson, swinging his right arm and stabbed him in the centre of the chest. Blood began to pour out of the wound. The offender grabbed his bag and ran off. Mr Henderson went home. The emergency services were called and Mr Henderson was taken to hospital. The wound that he had sustained was 5mm in breadth and it was closed with glue. The knife, it appears, had bounced off his sternum. The evidence was that if the knife had gone one inch lower or one inch to the left the stab could have been fatal.[4]The offender was arrested a day or so later. In the course of the interview he admitted the stabbing and showed the police where he had discarded the knife. He was fully remorseful. He explained to the police that he carried a knife with him for self-defence after he had been mugged.[5]The court had the benefit of a pre-sentence report. It concluded that the risk of reoffending was low. There was also a medical report which had made clear that the offender was suffering from severe depression, anxiety and from post traumatic stress disorder arising out of his experience after his remand in custody and as a result of his worry about what he had done. It also made clear his extreme vulnerability if given a custodial sentence.[6]The offender's school reports are excellent. There can be no doubt that he has a bright future in sports. He is currently at college pursuing a diploma and, if all goes well, it is probable that he will go to university where he will take a course in sports and sports psychology. Even if that was not to be the case, he has been offered an opportunity to continue in this work with education just short of university standards. There can be no doubt from everything we have read that this young man will, if placed in custody, have a very difficult time. He is someone of excellent, positive good character who has a bright future in front of him.[7]There was therefore no doubt that there was the strongest possible personal mitigation in this case: His youth (17), his immediate admission to the police, his plea, his positive good character (which we have sought to set out), his remorse and the medical condition to which we have referred.[8]However, in considering a case of this kind we must have regard also to the circumstances of the offence and its prevalence today. It is very clear that by his plea to the count in relation to an offensive weapon he accepted that he had the knife with him for use, if necessary, either offensively or defensively for causing injury. He also admitted by his plea that when he struck Mr Henderson in the chest he intended to cause him really serious bodily injury.[9]The problems of knife crime are well-known. In Attorney General's Reference No 49 of 2008 [2008] EWCA Crim. 2304 the Lord Chief

Justice in dealing with a case in which the offender was 16 said:

"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."
[10]Those words of the Lord Chief Justice, "no ifs, no buts, no perhaps - we must do what we can to eradicate this dreadful knife problem" must apply to this case. As we have observed, this offender admitted carrying the knife as an offensive weapon. He became involved in a confrontation and the very vice to which the prohibition of carrying knives is directed occurred - namely when irritated or angry he took the knife out and stabbed someone in the chest. As we have already made clear, it was fortunate that a very serious injury was not caused. Everyone who deals with and sees knife crime knows that when someone stabs someone it is often a matter of chance as to how serious the injury will actually be.[11]It is clear in our judgment that this was a case to which there could be no “if”, no “but”, no “perhaps”. Custody was inevitable. It is a great misfortune that the Recorder apparently did not know of the Lord Chief Justice’s decision (although it has been given very significant publicity) and did not have the case referred to him. If the authority in Attorney General's Reference No 49 of 2008 were not sufficient, the Sentencing Guidelines Council guidelines in relation to the offence of section 18 also makes clear in respect of adults that a custodial sentence with a starting point of four years and a range of three to five years is the appropriate sentence for an adult on a not guilty plea.[12]There can in our judgment be no conceivable doubt, despite everything that can possibly be said about the excellent character of this young man and the devastating effect that custody will no doubt have on him that he has to go into custody. Everyone must have the message that if you take a knife out into the streets and use it, you will go to prison. This case may yet serve as a further example of that fact.[13]The only real issue in this case is the length of the term that we have to consider. We have considered whether we should pass a sentence longer than the maximum of a detention and training order, namely 24 months. Bearing in mind the circumstances of offence that was a possibility that we have considered. However, we do take into account the fact that he has been on curfew. Applying the policy set out in section 240A of the Criminal Justice Act 2003, we take into account half of the 67 days that he has spent on curfew. We also take into account the three days he has spent on remand. We also take into account the fact that he has performed about 30 hours or so of the unpaid work requirement.[14]Giving him credit for those matters, as we must, we think that the justice of this case can be dealt with by imposing upon him a sentence of a 24 month detention and training order. We therefore quash the original sentence and impose that sentence upon him. That sentence will be concurrent on each of the two counts on which he was charged.[15]The question now arises as to when he is to surrender to custody. Would you like a moment or two?[16]MISS SIKAND: Yes, please. (Short adjournment)[17]MISS SIKAND: My Lord, thank you for the time. I wonder if I could ask for the court's indulgence to the extent that he surrender on Monday. I know of course there is no point in putting off the day, as it were. His family and he are aware of it, but it gives him an opportunity to deal with his college if at all possible to let them know, his football team and to say goodbye to his brothers who are both at separate universities, as I understand it. He of course turned up here today and there is no question that he would not turn up at the police station in due course, and he still has a tag on him as well and that will take a while to remove. I am entirely in the court's hands.

LORD JUSTICE THOMAS: Mr Mably, do you have any observations?

[19]MR MABLY: I have no objection or observation either way.

LORD JUSTICE THOMAS: We are prepared to accede to your request. No doubt his parents, in light of the psychiatric reports and psychological reports we have read, no doubt his parents will see that he has any necessary medical attention.

[21]MISS SIKAND: My Lord, no doubt they will do what they can.

LORD JUSTICE THOMAS: If he was going into custody this court would have directed the Governor of HM Young Offender Institution to that end. We always do that in these cases and therefore the responsibility on his parents is important and no doubt those who have helped him can obtain the necessary support that he may need. I just wanted to say that we will accede to it, but that is our observation. It must be a matter for the health authorities and his parents.

[23]MISS SIKAND: My Lord, his closest police station is Bethnal Green. I think the proper course is to surrender to the local police station.[24]THE PROBATION OFFICER: That is the norm.

LORD JUSTICE THOMAS: Yes, that is the normal course. If he had not been here today we would have said surrender at some convenient time. We see no objection to this. The only concern in this case is in the light of the psychological reports before us. As long as the proper health arrangements are made we are quite happy to accede to what he has requested through you and what his parents have requested. As to the time he turns up on Monday, it will obviously be to that police station and what time would he like?

[26]MISS SIKAND: By 11 am, my Lord?

LORD JUSTICE THOMAS: How would that work, Mr Gardener. Would he have to sit in the police station a long time or would they take him straight off?

[28]THE PROBATION OFFICER: That sounds reasonable. I am sure a warrant would be awaiting at the police station so they will know--

LORD JUSTICE THOMAS: How long will it take the prison contractors to pick him up and take him? I am not very keen that he spends long in a police cell.

[30]THE PROBATION OFFICER: It would not take more than a couple of hours.

LORD JUSTICE THOMAS: Then I make a direction that Serco be told, or the requisite Home Office liaison people, that this court would expect him to be collected promptly and obviously Mr Gardener you will convey to the Governor at HM Young Offender Institution the evidence in this case and our concern in relation to his detention there.

[32]THE PROBATION OFFICER: Yes, my Lord.