T, R. v [2011] EWCA Crim 2345

[2011] EWCA Crim 2345Case No 201103679 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 16 September 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE WILKIE
MR JUSTICE HOLROYDE
Between
R E G I N ACrownv
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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 7831 8838(Official Shorthand Writers to the Court)
MR D PINNELL appeared for Appellant
Judgment
[1]MR JUSTICE HOLROYDE: On 26 March 2011 this appellant, who was born on 18 September 2004, and was therefore barely 16 and a half years old, attacked and grievously injured Mr Dean Britain. He was charged on count 1 on the indictment with causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, and on count 2 with unlawfully inflicting grievous bodily harm, contrary to section 20 of that Act. On 19 May 2011, in the Crown Court at Cardiff, he entered a guilty plea to count 2. His plea was accepted, and count 1 was not pursued, because the prosecution accepted that the evidence showed that the unprovoked attack consisted of a single punch, albeit a powerful one. On 8 June 2011, after an adjournment to obtain a pre-sentence report, the appellant was sentenced by HHJ Gaskell to a detention and training order for 24 months. He now appeals against that sentence by leave of the Single Judge.[2]The offence was committed in Cardiff city centre on a busy afternoon. The appellant was with three friends. They chanced to walk passed a group which included Mr Britain. It seems Mr Britain had consumed alcohol and was unsteady on his feet. Quite without justification the appellant chose to confront Mr Britain. He argued with him and then suddenly threw a punch with such force that Mr Britain was knocked to the ground and rendered unconscious. The appellant and his friends then walked off. There was evidence that as they did so the appellant's friends were congratulating him on his punch. It was left to others at the scene to assist Mr Britain and to call for an ambulance.[3]The appellant was arrested that evening. His mobile phone was seized and found to contain a note of a verse in which the appellant glorified the use of violence. He initially gave an untruthful account to the police, but did not persist in this and pleaded guilty, as we have said.[4]The catastrophic consequences of this attack for Mr Britain were summarised by prosecuting counsel in the following terms:
"He suffered severe head injuries. He was deeply unconscious on arrival, with a Glasgow Coma Scale score of 3 out of 15. He was intubated and ventilated. A scan, a CT scan, showed bleeding around the brain. His brain had swollen. He had multiple fractures to the head, to the right zygoma, to the sinus bone, as well as a fracture to the skull vault. The swelling to the brain was monitored but was of such concern that a neurosurgical team had to carry out surgery to relieve the pressure within the skull by removing part of the skull bone."
[5]As at the date of the sentencing hearing the up-to-date position was summarised by prosecuting counsel as follows: he noted that Mr Britain had remained in the intensive care unit until 17 April and had then been transferred to a neurosurgical ward. His condition had improved to an extent and he was able to be discharged home on 6 May, after some five weeks or more in hospital. However, at the date of discharge Mr Britain was immobile, and complaining of dizziness. He had to wear a helmet to cover the bone defect which resulted from his operation, though Mr Britain preferred to wear a rugby scrum cap instead. It was too early for the neurosurgeon to express an opinion. In the early stages the prognosis for recovery had been very poor. The most common consequences of this type of injury are usually neuro psychological, and they include difficulty with memory, concentration and personality changes. Although there has been, as we have indicated, some improvement from the earliest stages of Mr Britain's injury, his condition remains a most serious one.[6]The Victim Impact Statement by both Mr Britain and his partner were before the court, and we have read them with care. No one could fail to be moved by their contents. They are couched in restrained terms, but make very clear the extent to which the lives not only of Mr Britain but also his family have been devastated by this appellant's violence. Physically Mr Britain is so weak that he is unable even to hold his young children, and he is unwilling to leave the house in his wheelchair.[7]Young though he is, the appellant already had convictions for serious offences for assault occasioning actual bodily harm and robbery. The facts of those offences were that in March 2010, again in the Cardiff city centre, he made an unprovoked attack on a bespectacled employee of a fast food establishment by punching him in the face. The victim suffered cuts around his eyes, which required medical treatment. Shortly after that incident the appellant, again without warning or provocation, set upon another man. He punched him to the ground, kicked him in the head and stole his Ipod. For those offences the appellant was sentenced on 15 September 2010, just one year ago yesterday, to 12 months' detention and training order. He was released on licence on 16 February 2011 and committed the instant offence less than six weeks later. Those previous convictions, and the fact that the appellant was on licence, are plainly serious aggravating features of what was, in any event, a very serious offence of its kind.[8]The pre-sentence report contained an assessment that there was a medium risk of the appellant re-offending, but a high risk of his causing serious harm if he did so. It recorded that the appellant had accepted responsibility for his actions and expressed remorse. That remorse was also expressed in a letter to the court from the appellant himself. The court has also read a letter from the appellant's mother, letters from those concerned with the appellant's ambition for a career as a professional footballer (the indications being that he shows considerable promise in that regard), and letters from the Young Offender Institution where he was serving his sentence. For the most part that material shows the better part of the appellant's character, though there is a worrying indication that whilst awaiting sentence in this case he received prison adjudications in relation to three incidents of fighting or assault.[9]The learned judge set out his sentencing remarks with care and thoroughness. He rightly recognised that members of the public might think his sentence far too short and therefore accurately explained the limitations on his sentencing powers. Section 20 of the Offences Against the Person Act 1861 carries a maximum sentence of five years' imprisonment, so it is not in the limited category of grave crimes for which an offender of this appellant's age could receive a sentence of long-term detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.[10]The judge expressed the view, which was entirely justified on the information before him, that there was every indication that the appellant is a dangerous offender, as defined in the Criminal Justice Act 2003. He acknowledged, however, that in the light of the appellant's age and guilty plea it would not be possible to impose a sentence of four years or more, with the result that the indeterminate sentences for dangerous offenders were not available in this case. Thus, as the judge explained, the only custodial sentence which was available to him was a detention and training order, the maximum term for which is 24 months. That was the sentence he imposed.[11]When imposing a detention and training order the court is required, by section 101(8) of the Powers of Criminal Courts (Sentencing) Act 2000, to "take account of" any period in custody prior to sentence, but is not obliged to make any specific reduction in sentence in respect of that period in custody. It is not, in any event, possible to make a precise allowance for time in custody on a day-for-day basis. Section 101 stipulates that a detention and training order must be for 4, 6, 8, 10, 12, 18 or 24 months.[12]In this case the judge took into account the fact that the appellant had been remanded in custody for 76 days. He said he would not make any reduction in sentence because the appellant had been on licence and liable to recall at the time of the offence. No criticism is made of the judge's decision in that regard. However, the judge also declined to make any reduction in sentence to reflect the appellant's guilty plea. He acknowledged that the appellant was entitled to credit for his plea, but pointed out that the sentencing guidelines would indicate a bracket of up to three years' custody for this offence, even for a person of good character. He went on to say this at page 4C:
"Applying the guideline, taking into account your youth, but also taking into account the fact that this is the third occasion upon which you have used significant violence, and that at the material time you were subject to licence, I come to the view that the least sentence I can properly impose upon you is one of two years' detention and training."
[13]On behalf of the appellant, counsel, Mr David Pinnell, does criticise that aspect of the sentence. His grounds of appeal succinctly, but forcefully, advance the submission that it was wrong in principle not to give any discount for a plea at the first reasonable opportunity, and that the detention and training order of 24 months, being the maximum possible sentence, was therefore manifestly excessive.[14]As a result of the statutory provisions to which we have referred, which have the effect that the next available sentence shorter than 24 months was one of 18 months, any credit for the guilty plea would in practice have resulted in the sentence being shortened by six months. This case accordingly presents a sentencing problem. Given the statutory constraints upon the sentencing of this young offender, should the judge have made that reduction in sentence because of the guilty plea, even though the offence was such a serious example of its kind and caused such terrible injury to its victim?[15]Such a problem has been considered in a number of cases. The relevant earlier decisions of the court were reviewed and analysed with great thoroughness and clarity by Gross J, as he then was, giving the judgment of the court in R v March [2002] 2 Cr App R (S) 98. The facts of that case were such that it was described by the very experienced sentencing judge as the most disgusting case with which he had ever had to deal. There too the offender had received the maximum 24 months' detention and training order, notwithstanding his guilty plea. This court, though sympathetic to the sentiments expressed by the judge below, felt constrained to allow the appeal and to reduce the sentence to a detention and training order of 18 months on the ground that some discount should have been given by virtue of the guilty plea. At paragraph 22 of the judgment Gross J summarised the principles which emerged from his analysis of the earlier cases. We think it right to quote a lengthy passage from that paragraph:
"(1) The general principle is that a plea of guilty attracts some discount from the sentence that would have been imposed in the event of a conviction following a not guilty plea. This principle, developed in the case law, has now received "statutory recognition" in s.152 of the Act." [We pause to interject that that was reference to a provision now to be found in section 144 of the Criminal Justice Act 2003.] Gross J continued: “That guilty pleas should, in general, attract lower sentences, is in the public interest; they save time and expense and may be taken as an indication of remorse. If anything, guilty pleas are all the more important in cases which, if fought, will require vulnerable witnesses to give evidence. (2) The principle, however, is only a general principle; for instance, there is no invariable rule to the effect that a maximum sentence cannot be given in the case of a guilty plea. There are a number of well-established exceptions to the general rule and their list is not closed. When such an exception applies, a maximum sentence may be imposed, even in the event of a guilty plea. That said, given the general principle, it will rarely be appropriate to impose a maximum sentence where there has been a guilty plea. (3) The exceptions to the general rule include at least the following: (i) where the imposition of the maximum term is necessary for the protection of the public; (ii) where the plea was of a tactical nature; (iii) cases where a plea is practically speaking inevitable; (iv) where the count is a specimen count. As to the effect of these exceptions, we incline to the view that the existence of an exception does not automatically mean that the maximum sentence is to be imposed regardless of a plea of guilty; all the circumstances fall to be considered. (4) On the authority of Reay (supra ), at p.535, it would appear that a further exception to the general principle arises in cases where the offence is of such seriousness that the public interest requires the imposition of a maximum sentence. If seriousness of the offence, by itself, meant that the maximum sentence was to be imposed despite a plea of guilty, then reconciling this suggested exception and the authorities would not be straightforward; see, for example, Sharkey and Daniels ( supra ), where a guilty plea in respect of an appalling offence with grave consequences attracted a discount. In our judgment, the answer to this concern lies in the analysis set out in (3) above. Seriousness of the offence is a factor to be considered with all the other circumstances of the case in coming to the sentencing decision; in an exceptionally serious case, the court may (not must) impose the maximum sentence despite a plea of guilty. On this footing all the authorities can be reconciled; the rationale of the general principle is preserved (it would lack content if it could never operate in a serious case); finally, the court is not deprived of the power to refuse a discount on commonsense grounds in an exceptionally serious case. (5) Turning to the framework for young offenders (ie. any persons aged under 18), Parliament has legislated for a maximum 24 month term for Detention and Training Orders: ss. 100 and 101 of the Act. Here, as elsewhere, Judges are bound by legislation; that maximum must be respected. If it is too low, the remedy lies with others - not with the courts. (6) In certain, limited, circumstances, set out in s.91 of the Act, to which s.100 is subject, a person aged under 18 may be detained for longer than 24 months ... In a case where it is open to a Judge to sentence a young offender to a term of detention in excess of 24 months, pursuant to s.91, the discount for a plea of guilty may (depending on all the circumstances) properly be reflected by the Judge sentencing the offender to the maximum 24 months Detention and Training Order. In such a case, the offender cannot complain of not receiving a further discount; he has benefited from his plea of guilty by the Judge confining the sentence to the maximum Detention and Training period rather than imposing a longer sentence under s.91."
It should be noted that in R v March itself, despite the appalling facts of the case, this court did not regard it as falling into what Gross J had identified as the fifth exception to the general principle.[16]The principles set out in R v March were followed by this court in R v Dalby and Berry [2006] 1 Cr App R (S) 38. It should be noted that the offenders in that case were aged respectively 20 and 17. The principles set out in R v March were applied and the 17-year-old’s sentence of a detention and training order was reduced from 24 months to 18 months, even though the appropriate sentence for the 20-year-old (who also pleaded guilty) was one of three-and-a-half years' imprisonment.[17]By section 125 of the Coroners and Justice Act 2009 a sentencing court is under a duty to follow any relevant sentencing guideline unless it is contrary to the interests of justice to do so. In December 2004, and therefore after R v March had been decided, the Sentencing Guidelines Council published its definitive guideline on reduction in sentence for a guilty plea. That guideline was revised in 2007. As is well-known, it sets out both the purpose of reducing a sentence for a guilty plea and the manner in which that reduction should be assessed. At section E it considers circumstances in which the reduction may be withheld. Under the sub-heading "Where a maximum sentence might still be imposed" paragraph 5.9 says this:
"Similarly a detention and training order of 24 months may be imposed on an offender aged under 18 if the offence is one which would, but for the plea, have attracted a sentence of long-term detention in excess of 24 months under the Powers of Criminal Courts (Sentencing) Act 2000, section 91."
That paragraph reflects, of course, the sixth of the principles summarised in R v March. It is to be noted that the guideline is silent as to any possibility of withholding a reduction from a 24-month detention and training order on any other ground.[18]We do not consider that the sentencing guideline precludes the withholding of any reduction for a guilty plea in a proper case. We must therefore consider whether any of the exceptions for the general principles stated in R v March applies in the present case. It should be said at once that the sentencing judge did not specifically refer to any of those exceptions. His stated justification for departing from the general principle of allowing credit for a guilty plea was that the appropriate sentence for the offence was substantially more than two years. We do not feel able to support that reasoning. Parliament has determined that for an offender under 18 charged with this offence the maximum sentence is the 24-month detention and training order, and the fact that an older offender would receive a significantly longer sentence cannot, of itself, be a reason for refusing any credit for a guilty plea.[19]In our judgment the only one of the exceptions which might arguably be said to arise in this case is the first of those mentioned by Gross J in R v March:
"where the imposition of the maximum term is necessary for the protection of the public."
We agree with the judge's view that there was every indication that the appellant is a dangerous offender, and the refusal of any reduction for the guilty plea would have the effect of protecting the public for an additional six months, three of which would be spent in custody and three on licence. That is not an insignificant additional protection. However, as will be apparent from all we have said, there are compelling arguments of law and principle for the general principle of giving credit for a guilty plea. We note that in R v March itself this exception was held not to apply: Gross J observing at paragraph 23(2) that R v Sharkey and Daniels [1995] 16 Cr App R (S) 257 made clear that in this context the phrase "for the protection of the public" has a somewhat restricted meaning. R v Sharkey and Daniels was another case in which a young offender had committed a very serious offence with grave consequences, and had received the maximum available sentence despite his guilty plea. In this court the sentence was reduced. Ebsworth J indicated at page 260 that an analysis of the cases showed that this exception:
"usually applies where there is some kind of personality disorder with a risk of repeated offending where the maximum is imposed to protect the public for as long as possible."
[20]After anxious reflection we do not feel able to say that that narrow exception applies in this case, or that departure from the general principle is necessary in order to achieve the comparatively short additional period of public protection which would thereby be secured.[21]For those reasons we feel bound to allow this appeal, despite the seriousness of the offence and its consequences. We see no justification for allowing more than the minimum reduction which in practice is open to us. We accordingly quash the sentence of a 24 month detention and training order, and substitute for it a detention and training order of 18 months. To that extent this appeal succeeds.