Attorney-General's Reference No 12 of 2009 [2009] EWCA Crim 1438

Case No 200900779 A9[2009] EWCA Crim 1438
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 19th June 2009
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE MADDISON
MR JUSTICE HICKINBOTTOM
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 12 OF 2009
Computer Aided Transcript of the Stenograph Notes of
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Mr J Laidlaw QC appeared on behalf of the Attorney General
Mr M B Wilson appeared on behalf of the Offender
J U D G M E N T
[1]The offender is estranged from his second wife, Janet Graham. They met in 1987 and they have a son, Daniel, who is in his teens. The offender had a number of children by his first marriage. His relationship with Janet Graham broke down in 2007. She then met a man called David Aspinall who was a colleague at work. She began a relationship with him. The offender discovered about the relationship and became angry and threatening towards David Aspinall. There were threatening telephone calls, and on occasion the offender went to his wife's place of work in an attempt to embarrass and humiliate her. He threatened to tell David Aspinall's partner of their affair. Matters came to such a pass that arrangements had to be made to bar the offender from their work place.[2]Janet Graham left the matrimonial home. She moved into a flat in Frodsham, Cheshire. She did not want the offender to know where she lived, but she gave her teenage son a key. The offender managed, without his son's knowledge, to copy the key.[3]On 10th October 2008 at about midday, the offender sent a text message to Mr Aspinall threatening to cause him pain and advising him to watch his back. Mr Aspinall did not take the threat seriously. That evening the offender met Janet Graham to discuss financial arrangements. He invited her to a local wine bar, but she refused and went off with Mr Aspinall.[4]During the early hours of 11th October at about 2 o'clock in the morning, the offender travelled to Mrs Graham's house and used the copied key to gain entry. His wife and Mr Aspinall were upstairs asleep in bed. They awoke to find the offender standing at the end of the bed holding a kitchen knife with a blade 6 to 8 inches long. The offender pointed the knife at Mr Aspinall and called him a "shit". Mr Aspinall jumped out of bed, terrified, and put up his arms to protect himself. He sustained a severe laceration to his right hand. He genuinely believed the offender was going to kill him. He therefore made good his escape. He ran out of the house stark naked leaving a trail of blood. The offender tried to follow him wielding the knife, saying he was going to "end it". Mr Aspinall tried to call for help from a window before he actually left the house, and once outside called for help at a nearby taxi rank.[5]Meanwhile, Mrs Graham had begun to scream, not surprisingly. Very bravely, she jumped onto her husband and grabbed hold of the blade of the knife, to which she clung for dear life. The offender threatened her but fortunately did not take the opportunity of attacking her further. She tried to keep him from following Mr Aspinall outside by barring the front door. She too eventually made good her escape, naked and bleeding from a serious cut to her hand where she had grabbed the blade.[6]The offender was arrested still at Mrs Graham's home. He told the police on the spot that he had "lost the plot". He said he did not intend to hurt his wife. Interestingly, he did not deny any intention to hurt Mr Aspinall. He told the police he felt better for getting it off his chest, whatever "it" was.[7]Both Mrs Graham and Mr Aspinall have been traumatised by the incident. They are worried about what the offender may do: whether he will search them out again and try to kill them. Mr Aspinall required surgery for damage to six tendons and two nerves in his right hand. By the time of sentence, he had spent two periods in hospital and had undergone a period of physiotherapy. Unfortunately further surgery was required. The injuries to his hand were particularly serious for him because of his work.[8]Mrs Graham's injury to her hand was also serious. The knife severed tendons in her fingers also. She lost some flesh and some tissue. Further, she received some heavy bruising to her back and bruising to her thigh.[9]They both described suffering sleepless nights and nightmares as a result of the incident. Mr Aspinall describes feelings of anguish and terror. Mrs Graham describes feelings of stress and anxiety and suffers flashbacks. She stopped going out in Frodsham because of the humiliation and embarrassment of having been found on the street naked and bloodstained after the attack.[10]At trial the offender pleaded guilty to an offence of aggravated burglary on the basis that he entered as a trespasser and inflicted grievous bodily harm. There was a written basis of plea before the judge. It read as follows:
"1. The defendant accepts that he caused the injury to David Aspinall's hand with a kitchen knife, after entering the property as a trespasser. Although there is no medical evidence or photographs of the injury he accepts that this injury is capable of being GBH. 2. He attended the flat in Frodsham in a very emotional state, having finally realised that there was to be no reconciliation with his wife, and that he had been deceived about the nature of the relationship with Mr Aspinall. 3. He entered the bedroom with the knife and woke the couple up. He does not know how he caused the injury to Mr Aspinall's hand, but accepts that his actions were reckless in that situation, and suggests that the injury was caused as Mr Aspinall put his hand out to protect himself. He denies actually trying to stab Mr Aspinall with the knife but accepts that this must have been a very frightening situation for him."
[11]Mr Laidlaw QC, for Her Majesty's Solicitor General, has put before us what she considered to be the salient features of this case. The offender is a man of 59 years of age and of previous exemplary character. Mr Laidlaw invited our attention to significant passages in the Pre-Sentence Report. The author of the report wrote:
"2.6. In my view this offence sits within the context of power and control in that Mr Graham was unable to accept that his marriage was over and wanted to exact his revenge. He was clearly disinhibited by alcohol at the time and therefore acted out his feelings. He was at a loss to explain why he had taken a copy of the key, but in my view, this reflects premeditation to commit this offence. He tells me that he had no intention to hurt either of the victims and rather it was his intention to self-harm in front of them (which again would reflect power and control) as a way of demonstrating how he felt. 2.7. Mr Graham is deeply remorseful about his behaviour and has expressed his willingness to pay compensation to the victims. He was able to express empathy to the fact that they have been traumatised by his behaviour and that his relationship with his ex-wife has irretrievably broken down."
[12]His Honour Judge Clarke no doubt had that final paragraph in mind together with the considerable material put before him by Mr Wilson on the offender's behalf when he sentenced the offender to a term of 2 years' imprisonment.[13]However, Her Majesty's Solicitor General seeks the leave of the court to refer that sentence to us as one that is unduly lenient because it ignores the aggravating features. i. The offence was committed in the context of domestic violence and involved an abuse of trust as defined in the Definitive Guideline for Domestic Abuse issued by the Sentencing Guidelines Council. ii. The attack was premeditated and carefully planned. Mr Laidlaw pointed out that this was not an isolated spur of the moment incident. There had been a course of conduct leading up to the incident during which the offender had tried to humiliate the victims and had repeatedly threatened them. There is also the very significant feature that the offender had gone to the trouble of copying his son's key, despite the fact that he must have known she did not want him to know where she lived. iii. The offence was committed at night and the offender broke in whilst the victims slept. iv. The offender was armed with a knife. 5. Both his victims were caused serious physical injuries and had suffered significant psychological harm.[14]Mr Laidlaw pointed to the following mitigating features: i. The fact that the offender pleaded guilty at the first opportunity. ii. His previous good character and exemplary military record. iii. The basis of plea indicated that he did not intend to cause grievous bodily harm. iv. The offender had expressed considerable remorse.[15]Nevertheless, Mr Laidlaw submitted that, balancing all those factors, the sentence of 2 years' imprisonment did not properly reflect the seriousness of the offences and the aggravating features present. Further, they did not reflect the need to deter others and public concern about cases of this kind.[16]He relied upon a number of decisions of this court which, as he and Mr Wilson will be the first to admit, were decided very much on their own facts, but were put before us as some kind of guide to the level of sentences which are generally to be expected in offences of this kind. The cases to which we were referred were Attorney General's Reference No 1 of 1995 (David James Henry) [1996] 1 Cr.App.R(S) 11, R v Barczi and Williams [2001] 2 Cr.App.R(S) 90, and R v Gordon [2002] 1 Cr.App.R(S) 122. It was Mr Laidlaw’s submission that a review of those decisions (and we shall return to them when we consider Mr Wilson's submissions) reveal a sentencing range of 5 to 7 years following a plea of guilty for offences of this nature. He accepted that someone with this offender's positive good character might well expect to receive a sentence at the lower end of that range.[17]Mr Wilson submitted that the decisions put before us by Mr Laidlaw could be distinguished on their facts from the facts of this case. In particular Mr Wilson highlighted the fact that the offender here did not admit any intention on entry to harm anyone physically, let alone cause grievous bodily harm. The basis of his plea was that the injuries were caused recklessly. He reminded the court that the prosecution accepted this basis of plea, and it was one of the main features of the case which had persuaded the sentencing judge to distinguish this case from more serious cases.[18]Mr Wilson observed that in the three cases relied on the offenders deliberately used violence against the victims. In addition, he submitted that there were other features which made those cases more serious than the instant case. In the Attorney General's Reference No 1 of 1995 (Henry), he pointed out that the offender, with three other people, smashed their way into the victim's home, forcing their way into the bathroom, knocked the victim to the floor, surrounded him and beat him with implements. To add insult to injury, they stole his wallet. Henry lost a Newton hearing, had shown no remorse, and did not appear to have had a good character. His sentence was increased to 5 years. In this case the offender was alone, he did not force his way into the house, he did not deliberately physically injure anyone and he did not steal any property. He pleaded guilty, there was no Newton hearing, he had shown remorse and had a positive good character.[19]As far as Barczi and Williams were concerned, they travelled from Plymouth to Nottingham with a change of clothing. They forced their way into the victim's house wearing balaclavas and surgical gloves. They repeatedly struck the victim with a piece of wood and bound his feet and hands. He was made to leave the house, by which time the police had arrived. Mr Wilson pointed out that on a plea of guilty their sentences of 5 years were upheld. He contrasted the offender's case by pointing out, again, that the offender was by himself, he was not disguised, he did not deliberately injure the occupants or tie them up and he did not make them leave the house.[20]In Gordon, Mr Wilson described how the offender broke into the house of a former partner where she lived with her two children. He was dressed in army combat clothing. He carried five knives and a piece of rope. He threw a knife at his former partner and her daughter, missing them by inches. There was a stand off when the police arrived. The offender had previous convictions and been to prison twice before. He pleaded guilty and his sentence was reduced to 5 years. Again, contrasting the facts of this case, Mr Wilson pointed out there was no forceable entry, no dressing in military clothing, no rope, no children present, only one knife, and no intention deliberately to injure anyone. Further, there was no stand off with the police, the offender has not been to prison, has no previous convictions and has a positive good character.[21]Mr Wilson also put before us another decision of this court, Attorney General's Reference No 47 of 1997 (Kenneth Anthony Oldsworth) [1998] 2 Cr.App.R(S) 68. In that case the offender was convicted of aggravated burglary and assault occasioning actual bodily harm. His sentence of 9 months, was increased to 2½ years' imprisonment in this court. The facts of that offence were that the offender had forced his way into a former partner's home at night armed with a baseball bat. He head-butted her twice, knocked her to the floor, pulled telephones from the wall, ransacked and damaged property and stole property. He had recent previous convictions for violence and had been to prison. He had absconded whilst on bail awaiting trial. Mr Wilson conceded that the offender Oldsworth had made efforts to rehabilitate himself but argued that, in contrast here, there was no element of forcing his way into the property or deliberately injuring anyone, no suggestion of ransacking or damaging or stealing property.[22]Pausing there, although we found the review of these decisions relatively helpful, none of them was on all fours with this case. For all the distinctions Mr Wilson was able to draw there were features of this case which make it more serious.[23]Further, Mr Wilson placed considerable emphasis on the offender's background.

The judge commented in his sentencing observations:

"You're a man of exemplary character, not just from what people have said about your army service which obviously has been considerable, but it goes beyond that because it shows the nature of the person as well and it's very rare that a court will come across references where people speak of somebody in such terms . . . "
[24]The references came from two army Majors who had served with the offender and knew him as an honest, loyal, respectful, reliable, trustworthy, honourable and caring man. The offender served some 28 years in the army, rising in the ranks to the highest non-commissioned rank of Regimental Sergeant Major. Since leaving the army he had settled in employment as a financial advisor.[25]In addition to the military references, which included a number from others who had served with him, there were references from members of the offender's family. His ex-wife, from whom he seems to have parted in relatively amicable terms, described him as a caring, family-orientated man who was an excellent father and who had never showed any inclination to any sort of violence and demonstrated a healthy respect towards others, especially women. The offender's three older children had written references describing him as a good man, a loving and generous father. They also describe the impact that the prison sentence has had on the offender, on themselves and on their children. They describe their father's remorse as genuine and deep.[26]The prison report upon the offender is also an excellent one. The offender is employed as a unit orderly. He is an education mentor for prisoners with learning difficulties. He has been a prison carer and he has given positive input into a victim awareness programme.[27]Lastly, Mr Wilson asked us to bear in mind that the offender's doctor confirms he attended his health centre twice before the offence because of the stress of the marriage breakdown and the difficulties he had in coping. In all these circumstances, Mr Wilson submitted either that the sentence of 2 years' imprisonment was not unduly lenient or that, even if we considered it lenient, we should not interfere with it.[28]We accept that the references provided for the offender and the reports upon him make gratifying reading. The letters from his children make emotional reading. However, this case is about far more than the offender's excellent character and excellent status as a family man. It is about a man who could not take the fact that his marriage had broken down, and who plotted his awful revenge upon his wife and lover for her infidelity. By stealth he obtained copy of her house key. He armed himself with a large kitchen knife. He broke into the house, using the key, in the dead of night, knowing his wife and Mr Aspinall would be asleep upstairs in bed. He stole into their bedroom and woke them up. Their terror at seeing him in these circumstances, armed at the foot of their bed, is unimaginable. It is no wonder they fled the house as soon as they could, stark naked. If the offender's intention was truly, as he told the author of the Pre-Sentence Report, to harm himself, one has to ask why it was he had previously threatened Mr Aspinall, why his apology to the police at the scene only referred to his wife, and why, when Mr Aspinall and his wife grabbed the blade of the knife to protect themselves and were obviously seriously injured, the offender not only clung on to the knife but remained at the premises. Far from dropping the knife and leaving, he persisted in his assault and had to be prevented by Mrs Graham from continuing his assault on Mr Aspinall outside the house. We accept that he did not, however, take the opportunity to attack Mrs Graham as he could have done had he been so disposed.[29]In our judgment, these facts are significant aggravating features of this offence and they are not sufficiently reflected in the sentence imposed. The judge himself acknowledged that it would be rare for a case of aggravated burglary of this kind to attract sentences of less than 4 years' imprisonment. We agree. Accepting as we do that the offender had no intention to inflict grievous bodily harm or any particular harm, accepting as we do the very powerful mitigation advanced on his behalf by Mr Wilson, we have no doubt that this sentence was unduly lenient. In our view, the circumstances of this offence demanded a sentence of at least 4 years' imprisonment, even taking into account the plea of guilty and even with the very substantial mitigation. We also see considerable force in Mr Laidlaw's submission that the offender could not have complained had he received a sentence in the lower range of the bracket to which we have already referred.[30]Given that the sentence is, in our judgment, unduly lenient, we must give Her Majesty's Solicitor General leave to refer it to us. We feel we have no option but to quash the sentence of 2 years and substitute for it the very least sentence that we can impose, which is one of 4 years' imprisonment. In doing so, we appreciate the impact of such a sentence upon the offender and upon his family, who are to some extent victims in this dreadful story. But it is our duty to have due regard to the suffering of the true victims of this offence, who are Mrs Graham and Mr Aspinall. For all those circumstances, the sentence will be increased to 4 years' imprisonment. The time spent in custody on remand will count towards sentence as before.[31]Mr Wilson, Mr Laidlaw, we are very grateful to you both for your very helpful submissions.