Lee, R v [2009] EWCA Crim 2046

Case No 2009/04410/A7

[2009] EWCA Crim 2046

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday 28 September 2009

The Strand

London

WC2A 2LL

B e f o r e:

MR JUSTICE EADY

and

MR JUSTICE BEAN

Between

R E G I N ACrown

- v -

Between

JOEL LEE

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Mr M Naser appeared for Appellant

J U D G M E N T

Monday 28 September 2009

[1]The appellant, Joel Lee (aged 21), pleaded guilty on 28 May 2009 in the Crown Court at Birmingham to two counts of allowing a dog to enter a place where the dog then injures a person, contrary to section 3(3) and (4) of the Dangerous Dogs Act 1991. The two counts related to a single incident, but two dogs were involved. On 22 July 2009 he was sentenced by Mr Recorder Andrews QC to ten months' imprisonment on each count concurrent. Orders were made for the destruction of the two dogs, and the appellant was disqualified from keeping dogs for ten years. Neither of those ancillary orders is or in our view could be the subject of an appeal. The appellant appeals against the sentence of ten months' imprisonment by leave of the single judge.

[2]The victim was a 72 year old women, Frances Carton, who lived next door to the appellant and his partner in Birmingham. In April 2008 the appellant acquired two pit bull terriers which lived in the rear garden. In October 2008 one of them escaped and killed a cat in the complainant's garden.

[3]At about 2.30am on Boxing Day 2008 the complainant heard noises coming from her back garden. When she went to investigate she saw that the appellant's dogs were in her garden attacking her cats. One of the dogs had a cat in its mouth. The cat died. The complainant went into the garden to try to save the cat. Showing great pluck and determination she took a broom with her, but one of the dogs attacked her, bit her and dragged her to the ground. In her statement she described how she thought at that moment that she was going to be killed. Eventually the dog backed off. The complainant managed to retreat into her house. She was bleeding heavily from her arm. A police officer in the vicinity attending to another incident heard her screams as she was being attacked. He arrived on the scene in time to see both dogs attacking her. He saw the flesh had been torn from her upper arm. He administered first aid and called for an ambulance.

[4]The complainant's upper arm was wounded and her bicep muscle had been exposed. She underwent surgery and a skin graft. She remained in hospital for four days. We have seen photographs of the most unpleasant injury.

[5]The appellant accepted in interview what had happened. He also accepted that previously a cat had been killed. He had no idea how the dogs had managed to escape.

[6]The complainant's evidence made it clear that she had been scared of the dogs for months leading up to the injury the subject matter of the charges. She had stayed out of her garden for fear that they had got through a damaged part of the fence. She said that if she ever saw those dogs again she would freeze with panic. She had, as we see it, been almost a prisoner in her house by reason of these vicious dogs.

[7]In passing sentence the Recorder said:

".... you must have appreciated that both dogs were dangerous, were liable to attack and could cause by their very size and nature, very serious injury indeed to humans, sufficiently serious to kill them. You must have appreciated that it was necessary to ensure every day and every night before you left them that the dogs were secure and could not escape. The fact that both of them escaped on the night of the 25th/26th December is clear evidence to me that there was a gross failure by you to ensure that those dogs were restrained and kept within the garden where they should have been. And you must have known that there were the cats next door to which they were attracted for the purpose of sport and that was the home of an elderly lady who would not be able to be any sort of a match against those dogs."

The Recorder referred to the previous incident in October as having been "a warning sign in the clearest possible terms".

[8]In his helpful submissions on behalf of the appellant Mr Naser accepts, rightly so in our view, that a custodial sentence was appropriate in this case. He submits, however, that ten months was excessive, having regard to the appellant's age and to two authorities: R v Cox

[2004] 2 Cr App R(S) 54

and R v Richards

[2009] 1 Cr App R(S) 48

. In Cox the sentence was reduced to three months' imprisonment; and in Richards it was reduced to four months' imprisonment. Neither is a guideline case and each is different on its facts. We do not read those two authorities as imposing any kind of maximum sentence of four months' imprisonment following a guilty plea, given that the statutory maximum is two years. It would be wrong to hold that there is any such court-created maximum. We do, however, accept Mr Naser's submission that a somewhat shorter sentence would have been sufficient to mark the gravity of the case. We take the view that the appropriate sentence is one of six months' imprisonment. The sentence of ten months' imprisonment on each count will therefore be quashed and concurrent sentences on each count of six months' imprisonment will be substituted. To that extent the appeal is allowed.