Spencer, R. v [2011] EWCA Crim 1231

[2011] EWCA Crim 1231

Case No 2011/01954/A1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 20 April 2011

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE TOULSON

MR JUSTICE DAVIS

and

MR JUSTICE EDER

__________________

- v -

Between

CHARLIE SPENCER

__________________

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Mr J Winship appeared for Applicant

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J U D G M E N T

[1]The applicant is now aged 19. On 8 February 2011 at the Crown Court at Woolwich he pleaded guilty on re-arraignment to affray. On 11 March 2011 he was sentenced to a term of six months' detention in a young offender institution. His application for leave to appeal against sentence has been referred by the Registrar to the full court.

[2]There were a number of co-accused. Two, O'Brien and Cowling, pleaded guilty to counts of inflicting grievous bodily harm and affray and were sentenced to twelve months' detention in a young offender institution. Three others, Robinson, Strugnell and Murphy, pleaded guilty on re-arraignment to affray and received the same sentence as the applicant, that is six months' detention in a young offender institution.

[3]The background facts can be very shortly stated for present purposes. The applicant had been to a night club in the O2 area of East London with his co-accused. He left the club with a number of them at around 4am on 7 March 2010. They joined up with two others who had been with them earlier that evening and went to buy some food. They then made their way to a bus stop. There were two students at the bus stop. One of them objected when one of the members of the applicant's group started to urinate on the pavement. The group went over and started to remonstrate with the student. He was kicked and punched by members of the group. His friend sought to intervene. The applicant joined in the ensuing fight after, he said, he was punched by one of the complainants. He struck at one and kicked out at another. During the course of the fight the first student was also head-butted. He was subsequently taken to hospital, where he was treated for fractures to the medial wall and floor of the left orbit. His friend sustained a cut to the chin.

[4]After the attack had finished, the group walked off. A bus driver refused to let them board his bus. The police were summoned. The members of the group were found in the area and were arrested.

[5]When he was interviewed, the applicant admitted becoming involved in the melee and said that he was very drunk at the time.

[6]The applicant has no previous convictions of any kind. Indeed, there was documentation indicating positive good character.

[7]The sentencing judge had before him a very detailed and thorough pre-sentence report which indicates that the applicant appeared genuinely shocked and empathised with the position of the victims. In dealing with his personal circumstances the pre-sentence report states:

"With reference to [the applicant's] education and employment achievements, the [applicant] tells me that he left secondary education with nine GCSEs and an A level in food technology. [The applicant] states that he began an electrical engineering course at Bexley college but left in his first year due to being in fear for his safety having been the victim of a robbery in that area. In terms of employment the [applicant] stated that he has a limited work history due to his age but has previously worked as a pipe fitter at Harrods. At present [the applicant] is a registered full-time carer for his mother who suffers from epilepsy and has provided further evidence to support this in the form of Department of Work and Pensions payments. Furthermore, the [applicant] also stated that his father recently suffered a broken back and as such he also provides care for his father when needed. In light of his current family responsibilities, [the applicant] is unable to secure full-time employment. However, he plans to explore the possibility of attending university in the foreseeable future to improve his employability."

There is also a reference to the applicant's partner being pregnant. We are told that she lives with the applicant and his mother. The pre-sentence report goes on to stress that what happened was totally out of character and that the risk of re-offending was low, providing that the applicant did not mix with the wrong company. The author proposed a suspended sentence with conditions and stated that any custodial sentence, if immediate, would have "detrimental implications for his family as he is the registered carer for his mother and also assists his incapacitated father".

[8]On behalf of the applicant Mr Winship, realistically and rightly, accepts that at first sight there can be no complaint at a custodial sentence of this order. Indeed, it might be said that at second sight that would also seem to be so. He accepts that this application for leave to appeal may seem unusual. He rightly acknowledges that the public is fed up with this kind of prevalent and frightening public disorder. This was a group attack on people acting in a public spirited way in protesting at loutish behaviour, one of whom suffered serious injuries in consequence of being attacked, all this at night in a public place. It is ironic that the applicant should have associated himself with this group attack after his own previous experience of violence inflicted upon him which caused him to leave the Bexley area.

[9]Mr Winship nevertheless submits that this sentence was too long. He was reluctant, however, to attribute the words "manifestly excessive" to the sentence: although this court can ordinarily only interfere if the sentence is manifestly excessive or wrong in principle. At the heart of Mr Winship's argument today is a plea for mercy. He submits that if mercy is shown to the applicant, as he says is justified, then the sentence either should have been, and should be, suspended, or at all events it should be reduced from the six month term imposed by the judge. Mr Winship founds himself on the applicant's guilty plea, his positive good character and his age, all of which were acknowledged by the judge. But Mr Winship's main focus of emphasis was to concentrate on the applicant's mother's position and also the position of his father and of his pregnant girlfriend. The applicant is the registered full-time carer of his mother and there is a degree of dependence on the part of the mother and it would not be right that she should be separated from him as her carer for any time longer than is necessary.

[10]It appears to us that the mother is not fully dependent on the applicant in the sense of 24 hours a day. Indeed it is to be noted that for a period of time the applicant was able to attend an electrical engineering course in Bexley, he had employment with Harrods for a period of time, and he has ambitions of attending university in the foreseeable future. All that indicates that there will be a means by which his mother's needs can be catered for. Although it may be that for the applicant to serve a custodial sentence will have a detrimental impact upon her, there is nothing to indicate that the consequences of his having to serve a custodial sentence will be devastating so far as she is concerned. Indeed we are told today that the applicant's pregnant girlfriend is apparently still living with the mother. So far as the father is concerned, no doubt he has much appreciated and benefited from the applicant's support, but that is little basis for departing from what otherwise is a wholly justified sentence.

[11]Mr Winship concentrates wholly and solely on the applicant's personal circumstances and the mitigation available to him, including the impact on his family. However, the court must have regard not only to the situation of the applicant, but also to the offence offence. This was a very nasty offence. It cannot possibly be said that the sentence imposed by the judge was in any way excessive or failed to have due regard to all the mitigation available.

[12]Accordingly, in those circumstances this application is refused. _______________________