C & Ors, R v [2009] EWCA Crim 1441

No: 200902511, 2510 & 2566 A1

[2009] EWCA Crim 1441

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 19th June 2009

Strand

London, WC2A 2LL

B e f o r e:

LADY JUSTICE HALLETT DBE

MR JUSTICE MADDISON

MR JUSTICE HICKINBOTTOM

R E G I N A

(1) L J C

(2) A T

(3) R

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Mr A Greenwood appeared on behalf of the First and Second Appellants

Miss J Rowley appeared on behalf of the Third Appellant

J U D G M E N T

Between

C & OrsDefendant

RCrown

[1]MR JUSTICE MADDISON: We will refer to the three applicants in the order in which they appeared on the indictment. On 6th April 2009 L J C, who was 16 years of age, A T, who was 15 years of age, and "R", who was 13 years of age, pleaded guilty at the Crown Court at Merthyr Tydfil to an offence of damaging property being reckless as to whether life would be endangered, contrary to section 1(2) of the Criminal Damage Act 1971. The particulars of offence read as follows:

"L J C, A T and [R] on the 18th day of July 2008 together with others, without lawful excuse damaged motor vehicles travelling on the A465 at Merthyr Tydfil intending to damage property or being reckless as to whether property would be damaged and being reckless as to whether the life of Stephen Powell would thereby be endangered."

It was agreed by all concerned that this count was to be treated as a specimen of the numerous offences of a similar kind committed by the applicants.

[2]On 27th April 2009 they were sentenced by His Honour Judge Curran respectively to serve 4 years, 3 years and 2 years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Their applications for leave to appeal against these sentences have been referred to the full court by the Registrar. We grant leave.

[3]The stretch of the A465 with which this case is concerned has three lanes, two of which are for traffic travelling east, the third, separated by double white lines, being for traffic travelling west. It was described by the prosecution at the Crown Court as a very busy and dangerous stretch of road.

[4]At about 4 o'clock on the afternoon of Friday 18th July 2008, the three appellants were engaged with one or two other youths in throwing stones and sections of brick from the roadside at vehicles travelling east. Three of this group were wearing hoodies with the hoods up. Eleven vehicles in all were damaged by having their windscreens smashed or their bodywork dented by these missiles. The vehicles included heavy goods vehicles, a commercial van and family cars carrying children, and in one case a baby aged 13 weeks. It was a frightening and a shocking experience for motorists driving along the road at that time. Some simply drove on. Some stopped when it was safe to do so.

[5]One driver, however, who has never been traced, simply stopped his vehicle in the middle of the eastbound carriageway, apparently in panic. This had catastrophic consequences. As the motorist Jamie Halbert was approaching the scene in his vehicle, he saw the appellants throwing stones and saw debris in the road. This distracted his attention and he did not see the stationary vehicle until very late. He then moved quickly into the outside lane to avoid it but, as he did so, he moved into the path of another motorist, John Wells, aged 29, who had been in the course of overtaking. To avoid a collision with Mr Halbert's vehicle, Mr Wells moved across the double white lines and into the westbound lane. But he then lost control of his vehicle and collided with a car being driven in the opposite direction by another motorist, Janet Cooper. Mr Wells suffered fatal injuries. Janet Cooper suffered a broken arm.

[6]A number of motorists noticed the group of which the appellants were part laughing at the chaos being caused.

[7]Statements were obtained from many other motorists whose vehicles were hit by stones and parts of brick. Amongst them were Stephen Powell, the gentleman referred to in the indictment. He was driving a landrover with his 8-year old daughter as a passenger. Several small stones hit the bonnet and deflected onto the windscreen. A large stone smashed the windscreen of another vehicle driven by Simon Griffiths. The windscreen of a 32 tonne, eight wheeled tipper lorry was also smashed, causing its driver, Gareth Howell, to swerve into the outside of the two eastbound lanes. The windscreen and the rear light of a car containing a mother and her 12-year old son were damaged. The windscreen and bodywork of a 14 tonne lorry driven by Michael Sullivan were also damaged. Mr Sullivan was shaken up by the incident just thinking about what might have happened. Another motorist, Adrian Roberts, whose van was pelted with stones which damaged his bonnet and windscreen, said that he felt quite lucky to be alive on such a busy road. When Emma James' windscreen was struck by a large stone, her reaction was to duck down, grip the steering wheel tightly and drive straight ahead. She described it as a really shocking incident. Samantha Edwards had her 13 week old son in her car. A youth threw a half sized house brick at the car. She swerved, but the brick hit her near side door and dented it. These are not all of the motorists who were spoken to by the police, but their statements collectively give a clear impression of the danger and the chaos being caused by the actions of the appellants.

[8]When the appellants were arrested, L C told the police that he had thrown about 15 stones but had not thrown anything at Mr Halbert's car. A T said that they had decided to "have a laugh" and throw stones at cars. It had not occurred to him that this could cause a crash or that someone might die, but at the conclusion of his interview he did say that he was disgusted at himself. R admitted presence at the scene but denied any involvement.

[9]When she pleaded guilty, R submitted a written basis of plea which the prosecution did not dispute and which read as follows:

"1. On 18th July 2008 at about 4 pm I did go to the A465 Heads of the Valley Road with L and A in full knowledge that they threw stones. 2. I gathered stones and put them in my coat pockets, which were handed to the boys. 3. At no time did I throw any stones or any other object."

[10]Although none of the applicants were charged with causing the death of Mr Wells, the judge had statements from Mr Wells' father and sister. Before he passed sentence the judge said this:

"I begin by making it clear that there is nothing that I can do or any judge could do or say or sentence that could be passed that could put right the permanent feelings of grief, devastation and loss, occasioned to the family of Mr John Wells, who was entirely blameless and who needlessly lost his life on the Heads of the Valley Road on the afternoon of 18th July 2008."

We too have read the statements and echo the judge's remarks.

[11]We turn now to consider the antecedents of the appellants. L C had been before the court on seven previous occasions but had never received a custodial sentence. His offences included assault occasioning actual bodily harm, arising out of an incident in a park when a female complainant was kicked and punched; making 999 calls calling the emergency services to attend an address in relation to false allegations of fire and burglary; causing criminal damage by throwing stones at the windows of a semi-detached house, smashing one of the windows; harassment, in the form of throwing stones onto the flat roof of a terraced property; and aggravated vehicle taking, committed after the offence which we are considering.

[12]A T, the younger half brother of the appellant L C, had made one previous court appearance for an offence contrary to section 5 of the Public Order Act 1986, committed after the offence which we are considering. On that occasion he had been made the subject of a referral order. The offence arose out of a dispute with his father. However, he had also been reprimanded for the offence of making the bogus 999 calls of which L C had been convicted.

[13]The appellant R was of previous good character.

[14]The judge had a Pre-Sentence Report in relation to each of the appellants. We have read them all. They are all lengthy, detailed and helpful. What follows is intended only as a short summary.

[15]The writer of the report on L C took the view that L had not properly thought through the possible consequences of his actions and showed limited remorse for what he had done. His offending and general behaviour had rapidly degenerated over the past year. His behaviour at the secure centre at which he had been on remand had been challenging, threatening and aggressive. He had been seen by a psychologist who had reported that his levels of cognitive and intellectual ability were low. He had previously been diagnosed with Attention Deficit Hyperactivity Disorder. His family had been unable to control his behaviour despite their best endeavours. Prior to his remand, substance abuse had been of great concern as had his emotional and mental health. He posed a high risk of re-offending. He realised that a custodial sentence was likely and the writer of the report was unable to suggest an alternative. Indeed, the writer said as follows:

"However, even though I am of the opinion that secure accommodation is not the most desired environment for a boy of L's age, it is currently proving to be the only environment where his behaviour can be challenged in order that risk to the community and himself, in the longer term, can be minimised. L is an extremely vulnerable young man and I feel that at this present moment, a Secure Centre setting is the safest and most appropriate place for him to be."

[16]The report on A T referred to him as a follower rather than a leader. He too appeared to have limited understanding of the possible consequences of his actions. However, he now appeared to show genuine disgust and remorse for what he had done. He too had been assessed by a psychologist and had been found to possess limited cognitive and intellectual ability. His emotional health was a matter of concern. He was not attending school due to a fear of being attacked by other pupils. Since the incident with which we are concerned, he had been harassed and threatened repeatedly. The report said that there were many areas of concern and continued:

"These include low educational attainment and ability, poor thinking skills and low self-esteem. The asset tool indicates that there is an medium to high risk of the defendant re-offending in the future. These factors, combined with other associated family and emotional problems would indicate that A is a vulnerable young person who can easily be drawn into offending situations."

Recognising that a custodial sentence would be the starting point, the report on A T nevertheless recommended a supervision order with a curfew condition.

[17]The report on R said that she appeared to understand, to an extent, the seriousness of her behaviour. She had moderate to severe learning difficulties, poor thinking skills and a disturbed childhood background with a turbulent care history. There had been concerns about her abusing alcohol and paracetamol and showing a tendency to harm herself. She had repeatedly been a victim of bullying. The report writer considered that she had been under the influence of the older co-defendants. By way of summary the report writer said this:

"In my opinion, the defendant has a number of difficulties, which are having a negative impact on her wellbeing and also contributed to the committal of this offence. These problems include learning and behavioural difficulties, poor thinking and social skills, and long-standing welfare concerns. I feel that these issues make it difficult for her to think consequentially and that she has a tendency to fabricate stories and self-harm in a misguided attempt for help and attention from professionals. Also, as stated earlier her demeanour and desperation to 'fit in' with a peer group make her a vulnerable young person, who is susceptible to bullying and peer pressure. Her lack of appropriate social skills further increases her vulnerability."

The report acknowledged that a custodial sentence was the likely starting point. Nevertheless, it recommended either a referral order or a supervision order with a curfew condition if a community based disposal was thought appropriate.

[18]It is of note that all three Pre-Sentence Reports stated that the throwing of stones at passing cars was a not uncommon activity on the part of a minority of youths who lived in the same area, and we note that there was information before the Crown Court that the police had previously issued warnings and appeals emphasising the potential consequences of such behaviour.

[19]In passing sentence

the judge said this:

"In the result, as it turned out, while the prosecution take the view that in law these defendants could not be held responsible directly for the death of Mr Wells, the fact is that as a result of what they were doing and while it was going on, an unknown motorist, for perhaps understandable reasons, appears to have panicked and stopped his vehicle in the carriageway. As a result of that another driver who was, in my judgment, it would appear, blameless himself had to swerve, not only to avoid the debris left in the road from the missiles which had been thrown at other vehicles but also to avoid the car which had stopped in front of him and as a result of that the fatal collision occurred in which Mr Wells lost his life and as I understand it an occupant of the other vehicle involved sustained a broken arm."

The judge made it clear that in sentencing he was reflecting the different ages of the appellants, the fact that L C had a worse criminal record than A T, and that R had no previous convictions. But all three appellants had pleaded guilty to a very grave offence. The sentences had to reflect their deliberate and malicious conduct and act as a deterrent for other like-minded youngsters.

[20]We have received recent reports from the institutions at which the appellants are now serving their sentences. We have two reports in respect of L C, indicating that his behaviour at the secure centre at which he began his sentence improved to some extent before he was transferred to a young offender institution due to his age. There, sadly, his conduct appears to have deteriorated again.

[21]A T has made an encouraging start to his sentence and is excelling in all areas of education but is extremely homesick and missing his family, this being substantially the result of the fact that he is serving his sentence at an institution far removed from his home.

[22]R has settled well at the secure centre where she is serving her sentence and, to put it shortly, is thriving. Indeed, we have today received a report which concludes with these words:

"Should the decision be made on 20th June [which should read '19th June', that is today] that [R] is released she will revert instantly to being at risk of significant harm."

[23]The appellants C and T now submit that the judge wrongly sentenced them on the basis that they were responsible for Mr Wells' death. Both point to the passage of the judge's sentencing remarks that we have already cited. These two appellants observe that the prosecution decided not to press charges of manslaughter and that there was no evidential basis for the judge's assertion that it was the appellant's activities which caused the unknown motorist to stop.

[24]We regret that we see no merit in these submissions. This highly experienced judge was well aware that this was not a case of manslaughter. He referred to the prosecution's view that the appellants could not be held responsible directly for the death of Mr Wells. In our view, the judge was perfectly entitled to conclude that it was the appellants' acts that caused the vehicle to stop in the carriageway. True it is that its driver never came forward, but it stopped at the time and at the place at which the appellants were throwing stones and parts of bricks into the road, an activity bound to cause considerable fear and anxiety and possibly panic on the part of any driver approaching the scene. Thus, in our view, the judge was right to approach this case on the basis that the acts of the appellants had set in train a sequence of events that led ultimately to the death of Mr Wells, even though there was in law not a sufficient causal connection to warrant the appellants being charged with manslaughter.

[25]On behalf of R, it is submitted that the judge gave undue weight to the presence in court of members of the deceased's family and to the sensibilities of the local community. We also reject that submission. The remarks made by the judge at the beginning of his sentencing remarks, which we have cited, were no more than a courteous and considerate reflection of the general situation that came before the court. We have no reason to suppose that the judge increased the sentences which he would otherwise have passed because the family of the deceased were in court.

[26]Independently of these submissions, we have of course considered whether the sentences passed on any of the appellants can be described as manifestly excessive, taking into account the nature of the offence, the parts in the offence played by each of the appellants, their previous characters, the matters referred to in the Pre-Sentence Reports, their pleas of guilty and the statutory need to have regard to the welfare of the appellants when deciding what sentence to pass. In our view, the judge properly reflected the differences between the appellants and passed sentences none of which can properly be described as manifestly excessive. They were severe, but the case called for severe sentences. On any fair view, the offence was extremely serious. The appellants engaged and persisted in a course of conduct on a busy road carrying fast moving traffic which could have led to death, serious injuries and substantial damage in any one of a number of ways, and which did lead indirectly to death, serious injury and substantial damage, albeit not in a way that could easily have been foreseen.

[27]Moreover, in our view, as the judge said, there was the clearest need for deterrence in this case, not only for youths in the same area who had behaved in a similar fashion in the past but of youths and others throughout the country who might contemplate attacking road traffic in some similar way. Such offences will rarely, if ever, be impulsive but they require little, if any, planning. They are easy to commit but can have catastrophic consequences. In our view, the courts must make it clear that those who commit such offences will be severely punished.

[28]It is for those reasons that these three appeals must be dismissed.