Murray, Re Attorney General's Reference No 29 of 2009 [2009] EWCA Crim 2169

Case No 200901695/A6[2009] EWCA Crim 2169
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 17th September 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE SILBER
MR JUSTICE BURNETT
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 29 OF 2009
(BRADLEY MURRAY)
Computer Aided Transcript of the Stenograph Notes of
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Mr A Derbyshire appeared on behalf of the Attorney General
Mr D Toal appeared on behalf of the Offender
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]This case comes before the court as an application by the Attorney-General, under section 36 of the Criminal Justice Act 1988. We grant leave for that application.[2]It relates to Bradley Murray, who was born on 30th May 1987 and is therefore now 22. On 11th February 2009 the offender pleaded guilty to one offence of unlawful wounding and one offence of aggravated burglary. On 6th March 2009 he was sentenced to a total term of 52 weeks' imprisonment, suspended for 2 years, with requirements that he do 300 hours of unpaid work and be subject to an electronic curfew between 10.00 pm and 7.00 am for a period of 6 months. He had spent 92 days in custody prior to sentence.[3]The Attorney-General now refers the matter to this court, asserting that the sentence was unduly lenient.[4]The facts of the case are as follows. At about 10.45 pm on 14th September 2008, Anthony Strickland was at home in Winster Avenue in Salford where he lived with his elderly father. He heard a noise coming from outside and he looked out of the window. He saw a man kicking the wing mirror of his car. He went out and confronted the man whom he believed had been doing that. That person was the offender. It does not seem to have been formally disputed that it was indeed he who was kicking the wing mirror of the car although that is not a matter of major import in view of what followed.[5]When the two men came together the offender became abusive and aggressive. He lunged at Mr Strickland and tried to grab him by the throat but Mr Strickland succeeded in pushing him away. The offender then left the scene, saying as he did so:
"You don't know who you're dealing with."
A neighbour, Andrew Field, came out of his house with his sons. He accompanied Mr Strickland to Sherwood Avenue nearby where they could hear banging noises. On arrival they saw the offender who started arguing with Mr Strickland saying:
"You don't know who you're messing with. I know people, I'm going to turn this Avenue into a war zone. You wait there, you just wait and see."
The offender went to make off but Mr Strickland grabbed him, saying: "I'm not taking this from you, little shit", and there was then a scuffle, in the course of which Mr Strickland punched the offender a couple of times.[6]A short time later the offender returned with a group of approximately 15 youths. There was another confrontation in the street. By now the offender was armed with a bottle. He came towards Mr Strickland and tried to strike Mr Strickland on the head with the bottle but Mr Strickland was able to block the blow and he knocked the offender to the ground. The offender got up and again left the scene with his friends, this time shouting:
"I'll be back with a knife."
At that stage Mr Strickland reported the matter to the police.[7]Later that night, at about 1.10 am, in other words some 2 hours after the original incident, the offender and another male knocked at the door of the neighbour, Mr Field. Mr Field lived in that house with his wife and three teenage sons. A 16 year old son opened the door to be confronted by the offender who was masked and carrying a baseball bat and a knife together with a second man who was also masked. The offender and his accomplice barged their way into the living room of the house. Seeing Mr Field, the offender swung the bat in a threatening manner, shouting: "Come on then." The two men left when they heard Mr Field shouting to his wife to call the police. It appears that the offender had gone into the wrong house believing that the house in question was Mr Strickland's house and it being Mr Strickland whom he had intended to attack.[8]That was the offence of aggravated burglary. Of course the form in which it was charged contained the ingredient of an intention to cause grievous bodily harm. The offence of unlawful wounding occurred almost immediately thereafter.[9]Mr Strickland had been alerted by the sounds of the disturbance and had come out of his house. In the street he encountered the offender and a number of other young men. They were armed with various weapons including a hammer and a meat cleaver. The offender approached Mr Strickland and swung the baseball bat, which was still in his possession, but Mr Strickland was able to defend himself. There was a struggle, during which the offender threw punches and kicks. Eventually he succeeded in striking Mr Strickland over the head with the baseball bat, causing it to break in half. The group then dispersed. Mr Strickland was treated in hospital for a deep 2-inch laceration to the top of his head, a crushing injury to his thumb and minor cuts and bruises to his back body and arms. In a statement made that day he referred to being in shock and in pain, adding:
"This scares me and I'm in fear of my safety and that of my father who I live with."
[10]In his statement Mr Field said that he had been left feeling angry and upset at being unable to protect his property. He said he felt "less secure" in his home and concerned for the safety of his family. His wife also described being "jumpy and on edge" and "scared to open the front door".[11]The offender was arrested on 16th September. After caution, he said:
"All I was doing was sticking up for myself."
He was later interviewed but he declined to answer questions.[12]Although offences of this kind are most often committed by young men with significant criminal records, that is not true of this offender. At the time he had no previous convictions, cautions or reprimands.[13]A pre-sentence report was before the sentencing judge. The offender had given an account of the incident to the probation officer, referring to provocation by Mr Strickland but he had also expressed his remorse, saying that he was disgusted by his and his friend's behaviour and saying that he could not believe that he had behaved in such a manner. He said he was now able to understand the fear that must have been caused by his actions. He was not normally a violent or angry person. His partner, who was pregnant at the time, was devastated by his actions and very worried by the possible outcome of the court proceedings.[14]The probation officer observed that at the time of the offence the offender had been doing unpaid work experience and that he was very motivated to gain employment to assist his partner financially. He was willing to attend any relevant course or training. He expressed a desire to apologise to everyone.[15]The probation officer concluded, appropriately, that the incidents were totally out of character for this offender, adding the suspicion that he may have been encouraged by less reputable friends with more experience of the criminal justice system. She thought that he was at low risk of re-offending and as posing a medium level of risk to the public.[16]The judge imposed the sentences to which we have referred. In so doing he described the two offences as being part of "one transaction". He also accepted that the offender had been "on the receiving end" from Mr Strickland and that the aggravated burglary had lasted only for a short period of time. Nevertheless, he said that it was extremely fortunate that the injuries caused were not more serious. He included the following in his sentencing remarks:
"So all of that describes an extremely serious series of events, which ... certainly crosses the custodial threshold and which, in other circumstances, might very well have attracted a prison sentence, measured in years, rather than months but, again ... the striking feature of the case is that practically all of the things that you did upon that night are entirely out of character for you. The pre-sentence report and the references, which I have before me, describe a completely differently person, who is committed to his girlfriend, who is expecting a baby, who is motivated to work and who is described, upon one of the references, as in particular being solicitous towards elderly people."
The judge went onto identify two additional features which persuaded him not to pass an immediate prison sentence. One was that the offender had already spent 3 months on remand, which would have been a salutary experience for him. The second was that it was within the court's power "to drastically reduce the offender's liberty" by means of the community order.[17]In these circumstances the judge said that he was "just about" to deal with the offender in the way suggested by counsel on his behalf, adding that it was "an extremely close run thing." Finally he said:
"...you should be under no illusions. The community sentence I am about to impose upon you is an extremely tough one... I do hope that you appreciate that you are extremely fortunate..."

The judge gave the offender full credit for his guilty pleas.

[18]In submitting to this court that the sentences were unduly lenient, Mr Derbyshire referred to these features: 1. The offences were deliberate and premeditated with the offender returning to the scene more than 2 hours after the initial confrontation; 2. The burglary was committed in the home of another man while the wounding took place when the offender was supported by a large group of youths some of whom were also armed; 3. A knife was carried and displayed and a baseball bat used to cause significant injury; 4. The offences were committed late at night; 5. At the time of the burglary the offender and his accomplice were masked. 6. Mr Field's wife and three children were in his home when it was invaded, the youngest child being then only 10 years old.[19]Mr Derbyshire acknowledged the following mitigating features: 1. The offender is a young man with no criminal history and of positive good character; 2. The offender had pleaded guilty to the offences albeit on the day of the trial, having previously offered to plead guilty to unlawful wounding and affray; 3. The offender displayed remorse and shame. 4. There was a degree of provocation by the offender at an early stage by Mr Strickland but not by Mr Field, whose home was invaded.[20]Mr Derbyshire has helpfully referred us to a number of authorities. In particular, Attorney General's Reference No 1 of 1995 [1996] 1 Cr App R(S) 11 and Attorney-General's Reference Nos 37 and 38 of 1997 (R v Angus and Davies) [1998] 2 Cr App R(S) 48. We have also considered Attorney-General's Reference No 16 of 1994 (R v Kenneth Fairfax) (1995) 16 Cr App R(S) 629.[21]Mr Derbyshire submits that the range of sentencing for aggravated burglary in a case such as this is 6 to 9 years' imprisonment following a trial. On any view, aggravated burglary is a grave offence and the form in which it was committed on this occasion embraced the intention to cause grievous bodily harm.[22]We are reminded of the observations of Lord Taylor CJ, in the first of the Attorney-General References to which we have referred [1996] 1 Cr App R(S) 11 at page 13, where he said:
"However, we wish to stress that anyone who breaks into somebody else's house, in the middle of the night, with the intention of inflicting grievous bodily harm, particularly if he takes others with him and has weapons, can expect to receive a substantial sentence. An offence of that kind is outrageous."
Those words were specifically adopted by Lord Bingham CJ in the later reference to which we have referred.[23]We are in no doubt that the sentences passed in this case were unduly lenient. We do not accept the submission of Mr Toal that they were merely lenient such that they can stand.[24]Mr Toal makes a number of submissions on behalf of the offender. He puts at the forefront of those submissions the point that so impressed the trial judge, namely that the offences were totally out of character. He also submits that this case is different from most other cases of aggravated burglary, in that notwithstanding the intent, no actual violence was used in the home of Mr Field. In our judgment, whilst that is true, it is a point that recedes in significance when one considers that moments later actual violence occurred in the street outside, by the use of a baseball bat to the head of Mr Strickland. Moreover, even in cases where no actual violence has been used, it is apparent from the earliest of the references to which we have mentioned, the case of Fairfax, that substantial prison sentences invariably follow.[25]We accept that the offender is a young man of previous good character and indeed in other respects positive good character. We also know that since the order was made in the Crown Court in Manchester, the offender has completed 163 hours of unpaid work, with a positive attitude and also observed the 6-month curfew. Nevertheless, we have to have regard to the gravity, not only of the offence of aggravated burglary, but of the totality of the criminality which occurred within a few moments in the form of the two offences to which the offender pleaded guilty.[26]So far as those pleas of guilty are concerned, Mr Toal frankly concedes that his client was not entitled to full credit for guilty pleas in this case. The history is not entirely clear, but this much is. At the outset of the proceedings in the Crown Court, on 22nd November 2008, the offender had, through his counsel, offered to plead guilty to an offence of unlawful wounding and an offence of affray. Of course in neither of those cases was he prepared to admit an intention to cause grievous bodily harm. Those proffered pleas were not acceptable to the prosecution. The matter was eventually listed for trial on 11th February and it was on that day, with the witnesses in attendance, that the deal was done whereby upon the offender pleading guilty to the offence of aggravated burglary, the prosecution accepted that plea of guilty to the lesser offence of unlawful wounding on count 1. Mr Toal suggests that the appropriate credit to which he was entitled, having regard to that history, was a discount in the range of 20 to 25 per cent. With that submission we agree.[27]Having concluded that the sentences were unduly lenient and having regard to all the circumstances to which we have referred, including the previous good character of the offender, we have come to the conclusion that the appropriate starting point in this case, for the offence of aggravated burglary, following a trial, would have been one of 6 years' imprisonment.[28]We take into account the plea of guilty and extend the credit to which we have referred, which would reduce such a sentence to one of four-and-a-half years' imprisonment. We also take into account what is customarily referred to as double jeopardy and in addition the compliance with the order that was carried out by the offender after its imposition. Bearing all those things in mind, we have come to the conclusion that the least sentence that we can now substitute for the original suspended sentence is one of three-and-a-half years' imprisonment. Accordingly we quash the original sentences. We substitute a sentence of 3 years and 6 months for the aggravated burglary. There will be a concurrent sentence of 2 years' imprisonment for the unlawful wounding. The period of 92 days spent on remand will count towards those sentences and we shall direct that the offender surrenders to Pendleton police station within 48 hours.