Nguyen, R. v [2016] EWCA Crim 448

[2016] EWCA Crim 448Case No 201504063 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY GENERAL'S REFERENCE NO 79 OF 2015
Venue Royal Courts of JusticeDate Wednesday 23 March 2016
Strand
London, WC2
B E F O R E:
SIR BRIAN LEVESON
President of the Queen's Bench Division
MR JUSTICE SWEENEY
HIS HONOUR JUDGE GRIFFITH-JONES
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrown-v-
Between
NGUYEN
Computer Aided Transcript of the Palantype Notes ofWordwave International LimitedTrading as DTI Global165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR K MASI appeared for AppellantMISS D HEER appeared for Crown
J U D G M E N T (Approved)
[1]THE PRESIDENT: Having pleaded guilty on 21 May 2015 in the Crown Court at Kingston-upon-Thames to offences of attempting to cause grievous bodily harm with intent and possession of offensive weapon, this offender, who is 24 years of age, was sentenced on 7 August 2015 by His Honour Judge Campbell to forty months' imprisonment in relation to attempting to cause grievous bodily harm and twelve months' imprisonment consecutive for possessing offensive weapon, making four years and four months in all.[2]On 3 September 2015 an application was made on behalf of HM Solicitor General to refer the sentence to this court, pursuant to provisions of Section 36 of the Criminal Justice Act 1988. At the same time an application was made to the Crown Court by the prosecution to vary the sentence pursuant to provisions of Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. In circumstances to which we shall later refer, the case was eventually reconsidered by Judge Campbell on 4 December 2015. Having rescinded the sentence that he had originally passed, he then re-sentenced the offender to an extended sentence of eleven years, seven years of which was the custodial term with an extension of four years. The sentence for possessing offensive weapon was increased to two years' imprisonment to run concurrently. Thus, following the rehearing, the overall sentence was substantially increased.[3]As a consequence of that decision, the offender now seeks to appeal that sentence. His application has been referred to the court by the Registrar. Procedure[4]After the imposition of the sentence of four years and four months' imprisonment, following the hearing on 7 August 2015, pursuant to Section 155 of the 2000 Act and within fifty-six days beginning on the day on which sentence was imposed, the case was listed at the behest of the prosecution to vary or rescind that sentence. The application was listed in time but unfortunately no attention was paid to the provision of Section 155 (4) of the Act which mandates that a sentence or other order shall not be varied or rescinded under this Section except by the court constituted as it was when the sentence or order was imposed or made.[5]Because His Honour Judge Campbell was not available to hear the application on 29 September and the fifty-six-day time limit expired on 2 October 2015 the case was listed before His Honour Judge Lodder QC. The defendant was represented but not personally present, having refused to leave his cell. At that hearing the court was erroneously informed that Section 155 (5) of the Act provided a power to extend the fifty-six-day time limit. Thus, by agreement, the case was adjourned until 8 October 2015 when Judge Campbell would be available to hear it. That date was of course outside the fifty-six-day time limit.[6]On 8 October, when listed before Judge Campbell, the offender again refused to attend court and the matter was further adjourned, the court being erroneously informed that Rule 42.4 of the Criminal Procedure Rules 2014 provided the court with power further to extend the fifty-six-day time limit imposed by Section 155.[7]On 3 November 2015 the case was listed before Judge Campbell. The offender on this occasion was present, and the sentence was rescinded without objection. The matter was then adjourned for preparation of addendum pre-sentence and psychiatric reports. It was then on 4 December that the matter was again heard by Judge Campbell who increased the sentence as we have indicated.[8]It is now common ground that there is no power to extend the fifty-six-day time limit although it was open to the court as constituted when the order was made to rescind the decision and then adjourn further hearing of the case outside the fifty-six-day period. What was critical however was that the sentence was reconsidered and rescinded within the fifty-six-day period (see R v Reynolds [2007] 2 Crim App R (S) 87). The discretion lies with the sentencing judge and no other judge (see, for example, R v Morrison [2004] EWCA Crim 2705.) Thus, neither the Act nor (it needs to be added) the Rules permitted Judge Lodder to extend the fifty-six-day period with the result that all that flowed thereafter was undertaken without jurisdiction and the sentence in fact imposed upon this offender remains that initially passed, that is to say a total of four years and four months' imprisonment. The Jurisdiction of this Court[9]It is common ground that this court derives its authority to reconsider this sentence pursuant to the provisions set out in Section 36 of the Criminal

Justice Act 1988 which is in these terms:

"(1) If it appears to the Attorney General - (a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and (b) that the case is one to which this Part of this Act applies, he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may - (i) quash any sentence passed on him in the proceeding; and (ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him."
[10]It is clear that the power of this court to declare a sentence unduly lenient depends entirely on what was put before the original sentencing court. It is not open to the Attorney General to rely upon further evidence not placed before the sentencing court to justify the Reference. That much is clear from Attorney General's Reference No 19/2005 B (W) [2006] EWCA Crim 785 in which, on behalf of the Attorney General, it was submitted that further psychiatric evidence demonstrated that the offender was dangerous and thus an indeterminate sentence was appropriate notwithstanding that such evidence had not been before the sentencing judge.

Lord Justice Rose observed (paragraph 10):

"The material which is now before this court points strongly in the direction of an indeterminate sentence being appropriate. But it is not this court's function under Section 36 of the Criminal Justice Act 1988 to substitute in the light of new material our view as to what the sentence ought now to be. Our task under Section 36 is to decide whether the judge's sentence in the light of the material before him can properly be characterised as having been unduly lenient. For the reasons which we have sought to explain, the judge was alert to the matters in relation to the possibility of imposing a discretionary life sentence to which he ought to have been alert and he reached a conclusion on the material before him which he had been entitled to reach. That, in our judgment, does not give rise to a sentence which can properly be characterised as unduly lenient."
[11]That decision, followed as it has been in the subsequent decision of Attorney General's Reference No 84/2009 R v Quain [2010] EWCA Crim 1879, leaves open the question of the power of the court if a sentence which is in fact unduly lenient as pronounced by the sentencing court then falls to be reviewed. In particular, the case leaves open the question whether at that stage, having declared a sentence to be unduly lenient, material which arises subsequent to the decision of the sentencing judge can be taken into account. It is beyond doubt that very frequently material is placed before this court to justify a conclusion that the offender need not be dealt with more severely by reason of material not available to the judge such as his progress in custody since the passage of the original sentence. Material in his favour is considered, but the issue which arises is whether material that it adverse to the offender can be considered.[12]In Attorney General's Reference No 74/2010 R v Pearson [2011] EWCA Crim 873 this precise issue was ventilated before the court.

Lord Justice Hooper, giving the judgment, said (paragraph 21):

"We take the view that we do have the power to take into account matters adverse to the defendant when deciding what is the appropriate sentence."
He observed that the point had not been fully argued. The proposition, however, has now been the subject of argument before us and, in our judgment, turns upon the proper construction of Section 36 (1) (b) (ii) of the 1998 Act.[13]The first task which this court must undertake is to decide whether a particular sentence is unduly lenient. If it is, it must be quashed whereupon, by virtue of that provision, whereupon the court is required in place of it to pass "such sentence as they think appropriate for the case and as the court below have power to pass when dealing with him".[14]Mr Masi, on behalf of the offender, argues that the power of the court derived from the facts then advanced before the court and that this provision does not permit the Court of Appeal to consider features which aggravate, as opposed to mitigate, the impact of a particular sentence. In our judgment that cannot be right. Once the court has concluded that a sentence, as passed, was unduly lenient based on the facts as known to the judge the responsibility of this court is to pass the appropriate sentence for the case. In those circumstances, it is, at the very least, open to the court to take into account whatever new information is available. As an example, assume that the court decided that it was unduly lenient not to declare an offender dangerous within the provisions set out in Section 226A of the Criminal Justice Act 2003 and the court then, on a Reference, concluded that the judge should have considered that the offender was dangerous but orders further psychiatric evidence. This evidence not only underlines the correctness of that decision but identifies the very real risk to the public which might not have been apparent from the original facts of the case. In our judgment it is beyond question that this court must then proceed on the up-to-date information. The Facts[15]With that introduction of law we turn to the circumstances of this particular Reference. In summary, the offender assaulted the victim - Karen Wong - at night as she walked home. He was disguised in a full burka, and struck her to the head and then to the eye with a rock carried in a plastic bag; he then tried to strangle her. Approximately two months later he was arrested in the same area wearing a similar disguise and carrying a hammer in a plastic bag. The case proceeded entirely on the premise that Miss Wong was simply in the wrong place at the wrong time and was a victim by chance.[16]Going to the evidence in a bit more detail, at about 11.45 pm on 6 December 2014 Miss Wong (then 23 years of age) was walking home alone along Cairns Avenue, Mitcham when she saw the offender walking towards her dressed in a full burka which covered his face and body leaving only his eyes uncovered. Needless to say, he was unrecognisable. He was swinging a blue plastic bag in his hand as he walked. The victim assumed the offender was a Muslim woman. As she passed him, he approached her from behind and struck her head and her eye with a solid object. He then knocked her to the ground and tried to strangle her with his hands. During the struggle the victim managed to pull at what she believed to be her female attacker's long hair and managed to pull the head scarf away. The defendant then ran away, leaving the blue bag behind which was found to contain a rock.[17]Miss Wong managed to make her way home, when she called the police and an ambulance. She was taken to hospital where she was found to have a swollen right eye which was closed. There was a superficial laceration to her lower eyelid and bleeding within the eye. In addition, she had a laceration to the parietal region of the head which was cleaned and closed with sutures with superficial abrasions to her neck. The offender was not then caught.[18]We move forward to 10 February 2015 when local residents who had been made aware of the earlier incident saw the offender, again dressed in a full burka, carrying a black plastic bag. They stopped him in Kerlin View, Mitcham, a short distance from Cairns Avenue, and asked him to put his bag down and remove his face covering. The offender initially complied but when he heard them talking about calling the police he ran away. After a short chase the offender was caught and detained until the police arrived. The local residents deserve commendation for their quick thinking. The plastic bag on this occasion was found to contain a hammer.[19]The offender was arrested and taken to the police station. He was interviewed but declined to make any comment. A DNA profile matching the offender was subsequently recovered from the blue plastic bag discarded on 6 December 2014.[20]The impact on Miss Wong was that she was in physical pain for about a month. She was unable to sleep until the offender was arrested. She felt less confident and less independent afterwards. She was distracted and on edge. Her fear of being out at night meant she spent less time with her friends and could no longer work late which meant that her work was suffering because she missed deadlines. The offender, who had no previous convictions or cautions, had the benefit of a pre-sentence report and a psychiatric report. The former noted that he had enrolled at the Open University to undertake a course at Birkbeck University. However since August 2014 he had been homeless and supporting himself by way of his student loan. The offence was explained on the basis that as this money was depleted, the offender said he became desperate and decided to commit robberies for financial gain. This account was received with some scepticism by the author of the report since there was no evidence that the offender had tried to search the victim or tried to take her property. The offender said that during the incident he had panicked and strangled her to stop her screaming and alerting others. He then ran away without stealing anything for fear of being caught. He admitted that he had purchased the burka the week before the offence to use as a disguise. Therefore, the offence was clearly premeditated.[21]In relation to the second offence, he said his intention was the same, namely that he planned to use a hammer to intimidate his victim. He demonstrated remorse.[22]The offender reported a problematic family life following his parents' divorce, with bouts of depression resulting in self-harm on at least four occasions. His offending was thought to be due to poor decision-making rather than pro-criminal attitudes to society or the individual. Nevertheless, it was concluded that he posed a high risk of serious harm to members of the public, particularly lone females. This included the risk of serious physical harm, violence, emotional psychological trauma. The likelihood that he would re-offend was assessed as medium.[23]The psychiatric evidence revealed that the offender suffered from a mild depressive disorder characterised by low mood, low self-esteem and lack of confidence. This was likely to be the result of his difficult family background and failure to develop secure attachments in childhood. This mild depression was probably worse at the time of offences.[24]Finally, the court had before it a number of character references which spoke in very positive terms about the offender and his relationships with others.[25]On behalf of the Solicitor General, Miss Heer submits that there are a number of aggravating features present in this attack. First, a significant degree of premeditation. On both occasions the offender was wearing a disguise and had armed himself with a weapon with intent to commit a serious assault. Second, there was repeated offending. Third, there was the use of a weapon in carrying along the rock, and the possession of the hammer in count 2. Fourth, the intention to commit more serious harm. She also referred to the timing and location of the offence, attacking a lone female at night and the ongoing effect on the victim.[26]The judge, when passing sentence, entirely acknowledged the conclusion expressed in the pre-sentence report that the offender was dangerous. He said:
"I have come to the conclusion, based particularly on the circumstances of these two offences, that there is a significant risk of you committing further specified offences and in doing so causing serious physical or psychological harm to others. You do, therefore, fall into the category of a dangerous offender."
[27]Having applied the in relation to attempting to cause grievous bodily harm in relation to the first offence, however, the judge concluded that the discount for guilty plea and the other circumstances meant that he need not pass a sentence of such length that permitted the passing of an extended sentence. It was in those circumstances that he reached the sentences to which we have referred.[28]Miss Heer argues that the judge erred in law - even in relation to the sentence that he in fact imposed - in concluding that he was unable to pass an extended sentence having regard to the sentences that he did in fact impose. Thus, where as it was entirely accurate to conclude that a sentence of three years and four months did not bring the offender within the provisions of Section 226A of the Criminal Justice Act 2003, notwithstanding the finding that he was dangerous, because the aggregate custodial sentence for both offences did exceed four years he was not in fact precluded from doing so (see R v Joyce and Pinnell [2011] 2 Crim App R (S) 30). That decision mandates that when deciding whether to impose an extended sentence pursuant to provisions of the Criminal Justice Act 2003 the court should consider the aggregate sentence of all offences before it. Provided the aggregate sentence is four years' custody or more an extended sentence may be imposed. In those circumstances the aggregate sentence should be imposed in respect of one count and concurrent sentences imposed in respect of the others.[29]Thus, it was entirely open to the judge, assuming that his assessment of the gravity of his offending was accurate, to pass a term of four years four months' imprisonment with an extended term pursuant to Section 226A of the 2003 Act and to pass a concurrent term in relation to the offence of possessing an offensive weapon.[30]Miss Heer does not however limit her observations in relation to sentence to the failure on the part of the judge to make use of the provisions which flow from his finding that the offender was dangerous. In addition, she submits the judge did not accurately assess the gravity of this offending. She accepts that the case fell within category 2 of the guideline issued by the Sentencing Council in relation to causing grievous bodily harm with intent on the basis of lesser harm and higher culpability. The factors indicating higher culpability included a significant degree of premeditation, the use of a weapon or weapon equivalent, the intention to commit more serious harm than actually resulted from the offence.[31]As a result, given that there were multiple features of culpability in step 1, she argued that the judge should have adjusted upwards from the starting point before further adjusting for aggravating or mitigating features. As for the aggravating features, she identified the location and timing of the offence together with the ongoing effect upon the victim. She recognised that there were factors reducing gravity which included the lack of previous convictions, remorse, good character and mental disorder. In any event, she argued that the starting point for this offence should have been in the order of nine years which then could have been mitigated to take account of the features to which we have just referred.[32]We agree with the proposition that the starting point which the judge must have taken was too low. In our judgment the starting point could not have been less than seven-and-a-half to eight years prior to mitigation for the guilty plea and the other elements of the case. On any showing, the sentence in relation to count 1 could not have been less than four-and-a-half years which itself would have permitted the imposition of an extended sentence. In those circumstances (quite apart from the approach which could have been taken relying on Joyce and Pinnell) we have no doubt that this sentence was indeed unduly lenient.[33]Further Information[34]Having so found, we now pass on to consider what sentence this court should impose in its place. That consideration - in the light of the conclusion we have reached as to the law - allows us to review what became apparent after the sentence was imposed.[35]What occurred was that Miss Wong saw a press report of the case which carried a photograph of the offender. She realised that she knew him. Prior to reading this report she had not seen a face and knew the offender by the name Huy rather than Hong Nguyen. She came to know him in 2009 as a friend of her then boyfriend and lost touch with him in about 2012. However in 2013 the offender contacted her via Facebook and asked to delete a photograph in which his backside was apparently depicted. She did not do so. He then contacted mutual friends, asking for the victim's address and suggested that he would report her to the police for sexual harassment. Later, the victim and the offender spoke to one another on the telephone. As a result, she deleted the photograph. Thereafter, she had no further contact with the offender but, since he had been sentenced, she came to know through friends that he was known to bear grudges. She now believes the attack on her was targeted and that the offender was looking for her again when he was arrested.[36]It was this information which caused the application under the slip rule.[37]The judge ordered a further psychiatric report and an addendum pre-sentence report. The former recorded that the offender continued to deny that he had deliberately targeted the victim and maintained that he intended to commit a robbery. However he accepted that when he had coincidentally come across her - and prior to attacking her - he had recognised her. He said he felt angry and still had bad memories of the time he knew her. When he had struck her he said, "It was like my hand moved on its own". When asked why he returned to the same area on the second occasion, he appeared to acknowledge the possibility that he returned to see the victim and suggested that he wanted to scare her. That was put by the psychiatrist in these terms:
"He was a little vague in his description though appeared to acknowledge the possibility he had returned to see Ms Wong. 'I thought of so many things. Maybe I should scare her. I was ashamed of so many things I've done in my past, I'd felt I was attacking my past then [when I attacked her]'."
[38]The psychiatrist concluded:
" ..... the question why [the offender] acted so violently towards Ms Wong was likely to be complex and layered. It is unlikely to be so straightforward as rejected love or a simple grudge."
He recommended that the sentence plan required thinking skills work and psychological work.[39]The result of this additional information was that Miss Heer argued that the further aggravating features included deliberate targeting of a vulnerable victim, locating a specific victim as she made her way home alone at night and prior violence towards the same victim. It was in those circumstances that the judge increased the sentence, as we have identified.[40]In our judgment it is abundantly clear that, in misleading the court as he did, this offender was not demonstrating the true remorse the judge initially accepted that he had. Furthermore, without in any sense suggesting that attacking an unknown victim is less serious than attacking a known victim, it is beyond argument in our judgment that the only proper assessment in relation to this offender was that he was indeed a dangerous offender; that is to say there was a significant risk of him committing further specified offences and in doing so causing serious physical or psychological harm. Furthermore, not only is the offence more serious for the reasons we have identified than the original assessment of it by reason of the aggravating features, the discount or allowance for personal mitigation was too great.[41]The judge assessed the appropriate sentence as being one of seven years' imprisonment. When Mr Masi initially drafted grounds of appeal without appreciating the sentence had not been lawfully passed he did not challenge that assessment or, indeed, the finding of dangerousness with an extension period. He challenged only the length of that extension, namely, four years.[42]It would be possible for this court to re-analyse the circumstances and to reach its own different conclusion as regards the appropriate sentence which should have been passed. We have done so, and come to a sentence within the bracket properly encompassed by the sentence that the judge did eventually pass. We have no doubt that the sentence was entirely justified and do not consider the period of the extension to be less than necessary.[43]Having regard to all that has happened since this offender was originally sentenced, we do not believe that it would be appropriate now to increase the sentence beyond that imposed by the judge wrongly on the last occasion. And in the circumstances we grant leave to the Solicitor General to refer the offender's sentence as unduly lenient, quash the sentence of four years four months imposed and impose sentences of seven years' imprisonment with an extension of four years, and two years' imprisonment concurrent in relation to the second count on this indictment for which this offender fell to be sentenced.[44]To that extent this Reference succeeds.

Cited in 3 later judgments