Marsh & Anor, R v [2011] EWCA Crim 3190

Case No 201103794/A2-201103980/A2[2011] EWCA Crim 3190
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 9 th December 2011
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE WALKER
RECORDER OF NORWICH
(His Honour Judge Peter Jacobs)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DARYLL MARSHJADE STOKES
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 S Reiz appeared for Appellant MarshMiss A Omideyi appeared for Appellant StokesMiss C Farrelly appeared for Crown
J U D G M E N T

MR JUSTICE COULSON: The appellant, Daryll Marsh, is now 25, the appellant, Jade Stokes, is now 20.

[2]On 27th May 2011 in the Crown court at Isleworth, before Her Honour Judge Kent and a jury, they were each convicted of one count of unlawful wounding. A month later Marsh was sentenced to 2 years' imprisonment and Stokes to 20 months' detention in a young offender institution. A co-defendant, Miss Harley, received an 18 month detention and training order. The appellants appeal against sentence with the leave of the single judge.[3]The facts were as follows. On 12th June 2010 Stokes and Harley became involved in a fight in a pub with the complainant, Miss Campbell, who is 16. Harley's mother was arrested as a result and Harley lost her handbag. In the early hours of the following morning Miss Campbell was set upon in the street by Stokes, Harley, Marsh (who is Stokes's half brother) and another woman. Whilst Stokes grabbed Miss Campbell's hands and held them behind her back, Marsh brandished a pair of bolt cutters to prevent Miss Campbell's friends from coming to her aid. Harley then proceeded to cut Miss Campbell's face with a key. She suffered a 4 centimetre laceration across her left cheek from her eye to her nostril. She required stitches. The scar was still visible at the time of the trial and will apparently remain so, because it cannot be surgically removed.

The judge rightly called this:

"...a shocking and violent attack, at night, in a public street on Rebecca Campbell who was then herself only 16 years old. The witnesses described their shock and horror at them seeing Rebecca Campbell who was left with her face covered in blood."

The judge noted that Miss Campbell:

"...has been devastated by this dreadful scar. The injury will have a long term affect on her... tragically it will serve to her as a constant reminder of this offence every time she looks in the mirror."
The judge then went on to consider and apply the new Sentencing Guidelines Council Definitive Guideline on assault. In the course of what was, on any view, a very careful sentencing exercise, the judge arrived at the sentences to which we have previously referred.[5]The principal ground of appeal, indeed it was the only ground expressly permitted by the single judge, concerned the proper application of the Sentencing Guidelines Council guidelines on assault. Those came into effect in June 2011. The judge concluded that this was a category 1 offence, which carried with it a starting point of 3 years custody and a range of 2 years 6 months to 4 years.[6]Both appellants argue that this was a category 2 offence, which has a starting point of 1 year 6 months and a range of 1 to 3 years custody. In particular, they both submit that the injury was not "serious in the context of the offence" so that the greater harm could not be demonstrated. In addition, it is said that because neither Marsh nor Stokes held the weapon that cut Miss Campbell's face, they played a subordinate role and that that must therefore be equated with lower culpability.[7]We consider that the judge was right to conclude that this was a category 1 offence. In order to demonstrate a category 1 offence it is necessary to show greater harm and higher culpability. Greater harm requires injury, including psychological harm, which is serious "in the context of the offence". In our view, a permanent and visible scar on the face of a 16-year old girl, allied with psychological consequences, amounts to a serious injury in context of a section 20 wounding. That is particularly so here, where the victim was the subject of a cold blooded attack which was deliberately designed to achieve the injury she suffered.[8]As for higher culpability, it is important that, when the various factors are looked at, they are looked at in the round and are not simply cherry picked. In our view, the test of higher culpability was plainly made out here, given that there was at least some premeditation, given the use of the weapon and given the vulnerable nature of the victim, a teenage girl attacked at night and outnumbered. Thus the precise role played by each of the appellants, and the issue as to whether or not they were subordinate to the principal offender, Miss Harley, is not something which, in isolation, could be the decisive factor indicating either higher or lower culpability.[9]Thus, in our view, the appropriate starting point, in accordance with these guidelines, was 3 years. The judge was, in our view, relatively generous in concluding that the aggravating factors increasing seriousness were outweighed by factors reducing seriousness or reflecting personal mitigation, so as to reduce the terms to 2 years for Marsh and 20 months for Stokes respectively.[10]In the case of Marsh, the aggravating factors included his previous convictions, the fact that he was older than the others and the fact he had armed himself with a significant weapon, the bolt cutters, which he used to facilitate the offence. His personal mitigation was not significant and, as we have said, the fact that he held off the others so that the attack could be carried out might be regarded as a subordinate role compared to Harley, but was not in our view a particularly important matter.[11]In relation to Stokes, many of the same aggravating factors applied to her. Again, we do not accept that she played a subordinate role, given that she held the victim whilst the wound was inflicted. In Stokes' case her real mitigation was both her youth and immaturity.[12]In all those circumstances therefore, we consider that the judge made ample reductions to reflect the personal circumstances of both of these defendants and arrived at terms which were really the lowest reasonably possible in all the circumstances.[13]We should add this. We consider that, even if the judge had been wrong, and that this was properly described as a category 2 offence, the sentences could still not be described as manifestly excessive. For all the reasons we have previously stated, particularly the presence of a number of factors indicating higher culpability, we consider that this would still have been at the top end of the range for category 2 for which the recommended term is 3 years. In this way, the precise categorisation makes little difference. That is often the way when an offence falls on the cusp of two Sentencing Guidelines Council guidelines. Here, whether this offence was at the bottom end of category 1 or the top end of category 2 makes little difference: either way, the appropriate starting point was 3 years.[14]Because we have heard very clear submissions this morning, we ought to deal, just briefly, with the matters that were raised, to the extent that we have not already done so. In relation to Marsh, we have already dealt with the point as to the subordinate role that he played; to the extent that it was subordinate, it was not significantly so and we do not consider that it made any meaningful difference to the term. We should say that threatened use of the bolt cutters appears to us, and certainly appeared to the judge, to have been a critical factor in allowing the offence to proceed at all.[15]There was a point about to lack of premeditation but we reject that because, although the appellants were not driving round looking for Miss Campbell, there was, as the judge found, clear premeditation when they left the car. Otherwise why else would Marsh have taken the bolt cutters?[16]As for Stokes, we again reject the submission that her role was subordinate. In our view if you hold the victim's hands behind their back whilst they are injured in cold blood, you are just as culpable as the person who inflicts the jury. Her youth, immaturity and absence of serious convictions were all taken into account by the judge when she reduced the term to 20 months.[17]Accordingly, for those reasons, these appeals against sentence are dismissed.