Akehurst & Ors, R. v [2010] EWCA Crim 206

[2010] EWCA Crim 206Case No 200900738 A9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 28th January 2010
Strand
London, WC2A 2LL
B e f o r e:
Between
R E G I N A
MR JUSTICE SWEENEY
SIR CHRISTOPHER HOLLAND
v
Between
JORDAN AKEHURST & "M"
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr G James appeared for First ApplicantMiss L Oakley appeared for Second ApplicantMr C May appeared for Crown
J U D G M E N T
[1]MR JUSTICE SWEEENEY: These are applications for leave to appeal against sentence, following referrals by the Registrar. The identity of the second applicant, "M", is protected by an order under the Children and Young Persons Act 1933. On 12th December 2008, in the Crown Court at Maidstone, Akehurst pleaded guilty to causing grievous bodily harm with intent, and M pleaded guilty to inflicting grievous bodily harm. On 20th January 2009 they were sentenced by His Honour Judge Carey as follows: Akehurst, four years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, with an order that 123 days already spent in custody should count towards that sentence; M, a youth community order with a curfew order for three months, a supervision order for two years and a 24 hour reparation order. There was a co-accused, "R", who, like M, pleaded guilty to inflicting grievous bodily harm. He was sentenced to an 18 month detention and training order.[2]The facts, in summary, are these. At the time of the offences on 23rd July 2008, Akehurst was 13 years of age, M was 14 and the co-accused R was also 14. The victim, "B", was 13. The offences came about as a result of a pre-arranged fight. It appears that Akehurst was known as the "hardest" boy in his year at his school, and that the victim was also known as the "hardest" in his year at another school. It appears that Akehurst wanted a showdown fight, but the victim was less keen. The day before the fight the victim told a friend that Akehurst had threatened to throw bricks at his house if he did not turn up for the fight. Word of the fight spread, and at the time of the incident about 30 pupils had turned up at a park to watch. They all appeared to have been there in support of Akehurst. Three young people, apparently friends of Akehurst, collected the victim from his home address and took him to the park. About 30 minutes later Akehurst turned up. Upon his arrival there were no preliminaries to the fight, and the two youngsters squared up to each other.[3]What happened next was filmed by one of the spectators on a mobile telephone camera. Akehurst immediately punched the victim twice to the face. As a result the victim fell to the ground. Akehurst then continued the attack by repeatedly punching, kicking and stamping on the victim's head with his shod foot. All the while the victim was defenceless on the ground. M and R joined in the attack. M kicked the victim twice to the body whilst the victim lay motionless and defenceless on the ground. The attack only stopped when adults in the area approached and the applicants and the co-accused left. All three of them then went to M's home address together.[4]The court has viewed the film of these events. The film depicts an attack of sickening savagery over a period of about 25 seconds. The victim was left lying on the ground, bleeding heavily from his nose. An ambulance was called. He was unconscious when taken to hospital, where he was found to have a swollen and bloody mouth and further investigations revealed swelling to the brain. He was taken to intensive care and put on a ventilator. He was kept in hospital for two and a half months and received physiotherapy and speech and language therapy. He had to re-learn to eat, to dress, to wash and even to speak again. He was left with difficulty with cognitive functions and his personality had changed. The consultant paediatrician looking after him reported that the victim would continue to have problems with cognitive abilities, motivation, social skills, mood and behaviour for a long time to come. Indeed, it was uncertain whether he would be able to further his education, or even to gain employment in the future.[5]The applicants were interviewed. Akehurst made no comment. M made admissions but could not explain why he had kicked the victim. He also admitted taking the other two to his house afterwards in an attempt to hide. M made those admissions before he was aware of the film footage. R made no comment during his interviews.[6]In a victim impact personal statement the victim's mother described how her son had been cheated of his lust for life. She was worried about his future. The impact on family life had been dramatic. The family was waiting for the victim's rehabilitation placement, which was due to last six months, but finding the finance for this was a struggle. The victim had started to try to play football again, but was only capable of exercise for 20 minutes. He had been left with no emotion or expression. His mother had been left as his main carer, and had had to give up her voluntary work in a charity shop in order to fulfil that role.[7]Akehurst was born on 27th December 1994 and was of previous good character. M was born in January 1994 and was also of previous good character. There was a pre-sentence report before the court in relation to both applicants.[8]As to Akehurst, the report indicated that he had said that he had lost control and did not know what he was doing at the time of the offence, that he now said that he felt sick about what he had done, but that he did not display any victim empathy. Indeed, the author noted, he legitimised his behaviour by stating that he had responded to a threat from the victim. In the author's view, Akehurst had not taken responsibility for the brutality of the attack. It appeared that he had willingly participated in the fight and his reputation for being the "hardest" boy in his year at school was noted. His parents had stated that there had been no concerns about his behaviour at home, but the author noted that there had been an earlier incident of violence by Akehurst in school. Akehurst himself, it appears, struggled to think of alternatives to violence in situations. However, the author stated that whilst remanded prior to sentence, at the Rebound Secure Training Centre, Akehurst's behaviour was described as excellent. The risk of him causing harm in the future was assessed as high. No alternative to a custodial sentence was proposed.[9]The pre-sentence report in relation to M indicated that he had admitted kicking the victim twice, and also that afterwards he had invited the two other participants back to his home. The author noted that M now said that he felt sick after the attack, but was unable to explain why he had kicked the victim. He was, in the author's view, either unwilling or unable to explain himself beyond saying that he felt bad about what had happened. The report noted that M had said that he had witnessed previous fights but had never got involved. It appeared, therefore, that his behaviour had been out of character. It was further noted that he had been open in police interview and the author expressed the opinion that deep down, M was ashamed of what he had done. There had been no particular behaviour problems prior to the offence and his family and friends were shocked at what had happened. His behaviour at school had been described as good, and indeed M gave the impression of being a decent, likeable young person who would not be predicted to get into trouble. The likelihood of re-offending was thus assessed as very low and the risk of serious harm was assessed as being low. A supervision order was proposed.[10]There were a number of character references in relation to each of the applicants before the court, and a letter from M himself.[11]In passing sentence, the learned judge made a number of observations as follows. The attack on B was violent and cowardly, and while it was unclear who had instigated the fight, the court suspected that there had been a good deal of talk and bravado, and the potential for misunderstanding and loss of face. What was, however, clear was that the victim had been the victim of a vicious attack by Akehurst. This incident had gone way beyond a school scrap, and had appalled those who had seen it. Akehurst had not been content with just knocking the victim to the ground, but set about kicking, punching and stamping on his head. There had been at least three stamps to the head. M and R had joined in the cowardly attack when the victim was probably already unconscious. M and R may not have appreciated how seriously injured the victim was at the time, but their involvement was wholly criminal and culpable. The victim had been left with a brain injury with all the consequences to which we have already made reference. In contrast, the defendants would serve their sentence and go on with their lives, whereas the victim would be affected for the rest of his days. The learned judge indicated that he bore in mind that the defendants were still very young and so the need for rehabilitation was noted. However, in his view Akehurst's culpability was so great that he had to receive a substantial period of detention. He was the ringleader and the main participant and he had inflicted very serious injury. M and R were lesser participants, and their cowardly kicking had probably caused relatively little injury in itself. However, their culpability was considerable given their joint participation with Akehurst and the timing of it.[12]The learned judge noted that Akehurst was still only 14, but had been 13 at the time of the offence and when he had pleaded guilty. He had no previous convictions and was not regarded as a bully at school. However, he had to be punished and be seen to be punished. The sentence had to reflect the seriousness of the offence. A detention and training order was considered, but his offending was so serious that the detention period had, in the learned judge's view, to be longer than two years. Akehurst was given full credit for his plea and his lack of previous convictions was noted. It was against that background that the learned judge imposed the sentence to which we have already made reference.[13]In sentencing M, the learned judge stated that had he been at liberty to impose an immediate custodial sentence, he would have done so. However, the learned judge continued:
"You are someone who must be sentenced not to immediate custody, but to some form of community order, because of your age at the time of your conviction, and because Parliament has set clear boundaries for the disposal of offenders of your age and in your position, for the offence to which you have pleaded guilty. I therefore have no choice but to impose a non-custodial sentence. You should count yourself extremely fortunate in having that result."
The learned judge went on to say that he was satisfied that the offence was out of character and was confident that M would not come before the court again. His best mitigation was the fact that he had made a full confession when first interviewed. It was against that background that the learned judge passed the sentence to which we have already made reference, indicating thereafter that the reason why he had not remitted M to the Youth Court for sentence was because he saw no injustice in M being dealt with in the Crown Court.[14]The ground of appeal put forward on behalf of Akehurst is that the sentence was manifestly excessive, given his young age. The ground of appeal put forward on behalf of M is that the sentence was wrong in law as the learned judge erred in refusing to exercise his power to remit M to the Medway Youth Court for sentence pursuant to section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"), with the only sentencing options available in the Youth Court being a referral order or an absolute discharge.[15]Dealing with Akehurst first, it is submitted in the skeleton argument put forward on his behalf that this case falls within the second highest level of offence as set out on page 13 of the relevant Sentencing Guidelines Council guideline, which, for an adult, involves a starting point of eight years' custody and a range of seven to ten years. It is rightly pointed out that in sentencing a 13/14 year old the court must have regard to the principal aim of the youth justice system, namely to prevent offending by children and young persons, and must also have regard to the welfare of the offender himself or herself. As to the principal aim of the youth justice system, that of course includes the need to demonstrate to the offender that criminal conduct is not acceptable and to demonstrate more generally that the law is being effectively enforced. What is required, it is submitted, is an individualistic approach in which the culpability of the offender and the harm caused, whether intended or foreseeable, is assessed taking into account aggravating and mitigating features, followed by any reduction for plea, and thereby to determine the ultimate sentence. It is pointed out that, generally, a young person should be dealt with less severely than an adult offender. It is submitted that the severity should reduce in proportion to the age of the offender, bearing in mind that young offenders typically lack the maturity fully to appreciate the consequences of their conduct, and that many youngsters grow out of crime, and that for a young person any sentence will seem far longer in comparison with their relative age than it would for an adult offender. It is pointed out that the key elements are the offender's age, both chronological and emotional, the seriousness of the offence, the likelihood of further offences being committed and the extent of harm likely to result from those further offences.[16]Thus, whilst accepting that the custodial threshold was passed in Akehurst's case, the essential submission advanced on his behalf is that, given the need to avoid the sentence having a crushing effect, the likelihood that Akehurst will mature and develop and the desirability of promoting a young offender's reintegration into society, a shorter sentence should have been imposed. A number of authorities are cited in support of those propositions which, as general propositions of law and approach, we accept.[17]The principal points urged on Akehurst's behalf during the hearing were his age, the fact that (from the latest report of his progress in custody) he is doing extremely well, and the recent Guidelines in relation to the sentencing of children and young persons which point out a sliding scale of reduction from the sentence appropriate for an adult offender in the range of one half to one third depending on age.[18]The fact is, however, that this was an offence of extreme gravity. It involved the use of a weapon, a shod foot, on a defenceless victim and with absolutely devastating consequences for him and his family. At paragraphs 22 and 23 on page 6 of the Sentencing Guideline Council Guideline relative to offences of this type it is recognised that the use of a weapon may take an offence into a higher sentencing range. That, in our view, is the case here, and plainly so. Based on the use of the shod foot as a weapon alone as an aggravating feature, the appropriate starting point for an adult in this case would, in our judgment, have been in the order of 12 years or more after a trial; that is before taking into account the other aggravating features and balancing them against the mitigating features. In those circumstances it seems to us that a starting point in relation to Akehurst that was at least one half of that appropriate to an adult was not, although tough, manifestly excessive. It was, it seems to us that, albeit at the top, nevertheless within the appropriate range for an offence of this extreme gravity. It follows that having made an appropriate discount from a notional sentence after a trial that was within the appropriate range, it cannot be suggested that the sentence that the learned judge passed was excessive. In those circumstances Akehurst's application is dismissed.[19]Dealing next with M, the sole issue, as we have already touched on, is whether the learned judge should have remitted him to the Youth Court in accordance with the provisions of section 8 of the 2000 Act. The section provides that, unless the Crown Court is satisfied that it would be undesirable to do so, it must remit a child or young person for sentence in the Youth Court.[20]On M's behalf, Miss Oakley argues that the learned judge should have ordered such a remittal. The matters to which she draws our attention, in particular, are these. Firstly, there is a significant difference between the sentence that was imposed, which carries a rehabilitation period of two and a half years, as opposed to a referral order, which would have been the maximum sentence available in the Youth Court, and which would have been spent at its conclusion, which was a maximum of 12 months. Secondly, she directs our attention to two authorities, and in particular to R (on the Application of W, S and B) v the Brent Youth Court, the Enfield Crown Court and the Richmond on Thames Youth Court [2006] EWHC 95 (Admin) She relies, in particular, on the way in which the court dealt with the applicant S in that case (in relation to analogous provisions) at paragraph 20 onwards of the judgment. The second authority is Lewis (1984) 79 Cr App R 94. Miss Oakley draws our attention to the principles identified in the judgment as relating to the operation of the analagous provisions of section 56(1) of the Children and Young Persons Act 1933 (as amended):
"Possible reasons that it would be undesirable to do so are as follows - these of course are by no means comprehensive: that the judge who presided over the trial will be better informed as to the facts and circumstances; that there is, in the sad and frequent experience of this Court, a risk of unacceptable disparity if co-defendants are to be sentenced in different courts on different occasions; thirdly, that as a result of the remission there will be delay, duplication of proceedings and fruitless expense; and finally, the provisions for appeal which are, as to conviction in the Crown Court an appeal to the Court of Appeal (Criminal Division) and as to orders made in the juvenile court an appeal to the Crown Court. This contrasts with the adult Magistrates' Court."
Lastly, Miss Oakley draws our attention to the fact that M is clearly doing well on the order that he is currently the subject of, with real consideration being given to that order being revoked having achieved its purpose. She also points out that he is about to represent Great Britain [as an athlete in a European event].[21]Notwithstanding the charm with which this submission has been advanced, it seems to us to be patently obvious that this was a case in which the learned judge was entitled to take the view that it was undesirable to remit M for sentence in the Youth Court. The learned judge had the advantage of the full picture, having presided over the sentencing exercise of the two co-defendants. There was plainly a risk of unacceptable disparity, and indeed also of injustice to the two co-defendants, if the three of them were split up in the way suggested. Accordingly, it seems to us that the learned judge's decision was well within the appropriate bracket of discretion available to him, and accordingly M's application is also dismissed.[22]In the result therefore we dismiss both of these applications.