Attorney-General's Reference No 21 of 2016 [2016] EWCA Crim 600

[2016] EWCA Crim 600Case No 2016/0775/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12 April 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE GILBART
THE RECORDER OF REDBRIDGE
HIS HONOUR JUDGE RADFORD
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 21 OF 2016
(R v TRINITY BRITTON-PAULL)
Computer-Aided Transcript of the Stenograph notes of
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(Official Shorthand Writers to the Court)
Miss J Ledward appeared on behalf of the Attorney General
Miss C Antenen (Solicitor Advocate) appeared on behalf of the Offender
J U D G M E N T (As Approved by the Court)

LORD JUSTICE DAVIS:

In

[1]this case the Attorney General seeks leave to refer a sentence on the ground that it is unduly lenient. We grant leave.[2]The sentence was a sentence of three-and-a-half years' detention imposed pursuant to the provisions of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 by a judge sitting in the Crown Court at Kingston. This sentence was imposed on 19th January 2016 and followed a trial before the judge and a jury at the same Crown Court whereby, on 7th December 2015, the offender was convicted of a single count of wounding with intent, contrary to section 18 of the 1861 Act. There was a co-accused who was convicted of a section 20 offence and who received an entirely different disposal.[3]The background facts are these. A young man called Byllal, who was aged 16, had known the offender and the co-accused Louis Alexander since primary school. Byllal had been good friends with the offender and indeed they had had contact together. The offender himself is now 17 years old. At the relevant time he was just over 16 having been born on 13th March 1999. At around 2 o'clock on the afternoon of 30th June 2015, Byllal was travelling on a bus in Tooting, south London. He saw the offender, the co-accused Alexander and another boy who was with him, Damian Campbell-Ngonga. Byllal got off the bus to join the three boys after they signalled to him. Damian then called Byllal a 'neek' which was understood by him to be slang for a joker. They were then directed to a back street just off Tooting Broadway. Byllal then noticed that Damian had a knife, one which he had seen before in the offender's possession. Damian swung the knife at him, hitting Byllal on the right wrist and causing a small scratch. In the struggle that followed Byllal wrested the knife from Damian but in doing so he stabbed Damian. Damian then backed off, letting go of Byllal and the knife. Damian then ran away and the offender said to Byllal: "You stabbed my young 'un", before asking for the knife back. Byllal gave it to him and then himself ran away. Damian was later to attend St. George's Hospital in the company of the offender and the co-accused where he was treated for a stab wound to the left side of his chest. He was very uncooperative with the police.[4]At around 3.30 pm on the afternoon of the same day, Byllal got on to a bus which was heading for Mitcham. It appeared that the offender and the co-accused were already on the bus but apparently he did not know that. When he saw them he decided to go and sit with them. They said that they wanted to go and smoke a cannabis joint and the group got off the bus at the Mitcham library stop. After some discussion and at Byllal's suggestion they headed to an open communal door to Abinger House, which was a block of flats in the London Road, Mitcham. The group went into the hallway. Either the offender or the co-accused began smoking. The offender took out a knife and had it in his hands. He then said to the co-accused, "Quick grab him". As the co-accused went to grab Byllal, Byllal moved and the co-accused punched him. The offender then stabbed Byllal in the groin area. Byllal managed to escape and made his way to Mitcham Town Centre.[5]People who had been working in a nearby solicitors' office heard a loud bang and went into investigate. They saw the offender and the co-accused walking away. They were asked if everything was okay and they responded "Yes, fine" as they walked off.[6]At around 4.15 on that afternoon, Byllal's mother received a telephone call alerting her to the fact that her son had been stabbed and was by the old McDonald's restaurant in Mitcham Town Centre. When she arrived the police and ambulance service were already attending to Byllal. They were taken to St. George's Hospital by ambulance. Byllal was found to have a stab wound to his right lower abdomen and a minor stab wound over his left shoulder blade. The principal stab wound had penetrated the abdomen causing a cut to his inferior epigastric artery which was bleeding internally and causing also injury to his bowel. There was active bleeding in the abdominal cavity and he suffered a significant drop in blood pressure resulting in an estimated blood loss of some 2 litres of blood. He received a total of six units of blood by way of transfusions. He underwent an emergency laparotomy during which the artery was tied off and the laceration to the bowel was closed with sutures. The stab wound to the shoulder blade was confined to skin and muscle layers and was about 1.5 centimetres deep. Byllal was to say he did not know how this had happened and that particular injury was washed out and closed with clips. Byllal was discharged from hospital on 6th July 2015. Medical evidence that had been put in indicated that the wound to the abdomen area was such as to be life-threatening and surgical intervention had been absolutely necessary.[7]A blood trail was discovered from the location where Byllal had been found leading back to the doorway of Abinger House. There was a smudge of blood on the wall inside the hallway and there was spatters of blood to the doorframe and on the rear of the door. That was confirmed as being Byllal's blood.[8]At 9.30 that evening officers attended the co-accused's home address and arrested him. His trainers were seized and sent for analysis. Airborne blood spots on the toes of the left trainer yielded a DNA match with Byllal.[9]Shortly after 10.30 pm on that day officers also attended the address where the offender was staying. In answer to questions he was vague about what he had been wearing earlier that day. The clothes he was wearing at the time of the incident, which included his trainers, were found washed and dried in the tumble dryer at the address. He was asked about these items and gave no response. Analysis of CCTV showed that he had returned to the address at around 5.30 pm and had put the items into the washing machine at 6.20 pm, before thereafter putting them in the tumble dryer after the wash had been completed. When interviewed and then re-interviewed the offender answered no comment to all questions asked.[10]He and the co-accused were both charged with wounding with intent and were sent to Kingston Crown Court for trial. They entered not guilty pleas at the plea and case management hearing.[11]At the close of the prosecution case at trial, count 2 (a count of unlawful wounding) was added to the indictment in respect of the co-accused only. It is to be gathered that the defence run by the offender at trial was one of self-defence. That defence was rejected by the jury who convicted the offender on 7th December 2015. The co-accused, as we have said, was acquitted of wounding with intent but convicted of unlawful wounding. Thereafter the cases were adjourned for the preparation of pre-sentence reports.[12]So far as the co-accused was concerned, he was in due course sentenced to a youth rehabilitation order for a period of two years with various requirements imposed and in addition was made subject to a criminal behaviour order.[13]Although the offender was only 16 at the time of this offending, regrettably he had already acquired a number of previous convictions. On 27th March 2014 he was cautioned for common assault relating to his 12-year-old younger brother. On 9th September 2014 he was convicted of unlawful wounding and criminal damage. The circumstances there were that he had blocked the 15-year-old victim's path, grabbed hold of him and hit him with a bottle in the neck and back causing lacerations which required hospital treatment. He was sentenced for that initially to a referral order for a period of 12 months. However, in the latter part of 2014 he appeared on two further occasions charged with possession of cannabis and theft and on 11th November 2014 the previous sentences imposed were varied to a sentence of a youth rehabilitation order with various requirements.[14]All of the sentences in respect of those convictions were varied again at the Wimbledon Magistrates' Court on 30th June 2015 - that, it is to be noted, was the very day on which this offending subsequently occurred. On that occasion he appeared for sentence having pleaded guilty to possession with intent to supply cocaine and also, it may be observed, possession of a knife in a public place on 8th June 2015. On that occasion he had been stopped and searched by the police and was found in possession of a 13-inch knife and some cocaine. He was sentenced for these offences and re-sentenced for his previous offences to a Youth rehabilitation order with additional requirements.[15]A detailed and careful pre-sentence report had been obtained in the Kingston Crown Court for the purposes of the sentencing exercise. The author of the report had consulted widely with various agencies involving the offender and had had experience of dealing with the offender himself. The author of the report noted that during the discussions the offender:
"... continued to deny intent and maintain that his actions were reactive and that he acted in self-defence and had no intention of causing harm to the victim. It is my assessment that Trinity is struggling to cope with the enormity and repercussions of what he has done and is therefore unable to accept full responsibility for his actions."
The report went on to note that Trinity claimed that he had brought the knife on the previous occasion for "protection" (which is something young offenders so frequently maintain) and as claimed to be a deterrent against being a victim. The author of the report then said this:
"I believe Trinity did not fully think about his actions and the potential that he could cause serious harm if he was to use his knife to protect himself."
The writer of the report indicated the view that Trinity was in a position where his peer associations and lifestyle had developed to such an extent that he had formed the mindset which centred around the need to respond to a perceived threat. The report went on to detail the rather difficult and troubled background relating to this offender, notwithstanding it would seem the valiant efforts of his mother. It was noted that there had been significant trouble for him at school and indeed he had been excluded from two mainstream schools because of his behaviour and other concerns about him. The writer of the report went on to say this, regarding the offender's emotional health:
"It is my assessment that there are a number of issues impacting on Trinity's emotional wellbeing. I believe that he struggles with feelings of rejection and low self-esteem, which he hides behind bravado and challenging behaviour towards his mother. Trinity is soon to become a father and I believe this is also impacting on his sense of wellbeing."
[16]The writer of the report expressed the view that the offender could be dealt with "outside the realms of the public protection provisions" and stated the view "Trinity's immaturity and difficulties in accepting responsibility for his actions does not necessarily indicate a lack of remorse." He went on to express the view that he had a degree of insight into the consequences of his actions. Expressions of remorse and revelation of a degree of insight can also be gathered from a well written letter sent by this offender to the Crown Court and which this court has itself studied.[17]In addition, a detailed report had been prepared by way of intermediary report and recommendations for the purposes of the trial which was dated 21st October 2015 and which doubtless the judge had read and which this court also has read.[18]It is submitted by Miss Ledward on behalf of the Attorney General and not really disputed, rightly so by Mrs Antenen on behalf of the offender, that by reference to the definitive guideline relating to assault in the case of adult offenders this was Category 1 offending. Here there undoubtedly had been greater harm because the injury was serious in the context of the offence. As we have indicated it was injury which had been assessed as life-threatening. Further, it was undoubtedly a case of higher culpability if only because there had been the deliberate use of a knife.[19]The following aggravating factors were advanced by Miss Ledward in her written arguments on behalf of the Attorney General. First, it was suggested that there was here a degree of premeditation. However, in the course of argument today, Miss Ledward rightly modified her stance on this. The indications are that Byllal himself had proposed going off to this particular area with a view to smoking cannabis and the judge made no express findings of any degree of planning on the part of the offender so far as the knife attack was concerned. It also follows that the suggestion made by Miss Ledward that this was a "sophisticated" attack also is to be rejected. Nevertheless, undoubtedly there was here present a significant aggravating feature in that clearly there was here an element of a revenge motive -- in effect the victim being punished for the previous incident which had occurred that morning. Further, important aggravating features present relate to the recent previous convictions of this offender, the convictions indeed being of a worryingly similar nature to the present offending. Further, it is most troubling that this offender had been before the court that very morning where he was sentenced for various matters and yet this offending occurred within but a few hours after that. Further, there clearly had been efforts to dispose of incriminating evidence by washing clothing and footwear.[20]The principal mitigating feature was and is of course the age of the offender, he being just over 16 at the time. In addition, there are indications of a degree of remorse and of insight as illustrated by the pre-sentence report and by the letter to which we have referred.[21]When he came to pass sentence, the judge's sentencing remarks were brief. He did not fully set out his own findings as to precisely what happened and what prompted what happened on that afternoon in question. But what he did say is this:
"Suffice it to say that this was a very serious injury which was inflicted on Byllal, and if I were dealing with you as an adult, I have no hesitation in saying that I would have treated this as a Category 1 offence, with a 12 year starting point."
Under the definitive guideline relating to assault the starting point for Category 1 offending relating to an adult is indeed one of 12 years, with a range of nine to 16 years. It is not quite clear from the judge's remarks whether he was simply indicating that this was the starting point indicated by the guideline or whether that was the judge's own starting point having regard to the combination of aggravating and mitigating factors.[22]At all events, having so stated, the judge indicated that he had paid great attention to the age of the offender and to the guidelines relating to someone of the offender's age. The judge indicated that he had to have regard to the welfare of the offender as well as the need to prevent him from committing any more offences. The judge indicated that he was not prepared to make a finding of dangerousness; and Miss Ledward accepts that the judge was entitled to make that finding. The judge indicated that he had been very impressed by the pre-sentence report and had given weight to it.[23]The judge then, and entirely rightly, indicated he proposed to pass sentence exercising his powers under section 91. Having so indicated, the judge then went on shortly to say this:
"The least sentence that I can pass is one of 3 years 6 months. I do that bearing in mind in particular your record of violence, and use of a knife, I bear in mind particularly your remorse, as expressed in the letter which I read earlier, and thirdly, I bear in mind that the courts have to maintain a line in sentencing people who use knives on the street -- well, it was just off the street -- but use knives in public places, in order to inflict injuries like this."
In other words the judge recited some of the aggravating as well as one of the mitigating factors present in this particular case.[24]Miss Ledward submits that the resulting sentence of three-and-a-half years' detention was not simply lenient but was unduly lenient. If the judge was taking a starting point, as he had perhaps indicated by reference to an adult offender of 12 years' imprisonment in the circumstances of this case, there was she submitted no justification whatsoever in the judge reaching a conclusion which connoted something like three quarters of the actual sentence that would otherwise be appropriate for an adult. She drew attention to the provisions of the over-arching principles for sentencing youths as set out in the relevant guideline which indicates that subject to age and maturity a starting point from half to three quarters of that which would have been identified for an adult offender may be appropriate: obviously the nearer the offender gets to the age of adulthood the closer the sentence will be to that appropriate for an adult. She submits that the reduction that the judge made to allow for the age of the offender at the time simply could not be justified.[25]For her part Mrs Antenen accepts that this was a lenient sentence. But she submits that it was not an unduly lenient sentence. She suggests that this case could properly be judged as going towards the bottom of the range relating to adults for Category 1 offending. She also emphasises the contents of the pre-sentence report and the indications of remorse made by the offender. At one stage in her argument she sought to pray in aid an issue of parity by reference to the sentence imposed on the co-accused. We have no regard to that at all. The co-accused was sentenced on a section 20 offence. Further, he clearly had not been the ringleader and indeed he was younger and had been led on by this offender. There is nothing in that particular point. Nevertheless, Mrs Antenen's argument remains, as she said, that this sentence is not to be styled as unduly lenient and this court should not interfere. She further made the entirely valid point that any sentence of any significant length of custody is a very serious matter indeed for a young person such as this. That is indeed right although of course that finds reflection, to a degree, in the relevant guideline setting out the over-arching principles relating to the sentencing of youths.[26]Although there are points in mitigation available to this offender, in our view they are at the very least balanced and indeed on one view more than balanced by the aggravating factors relevant in this case. As the judge rightly noted, the court has to take a very serious view of knife crime - in this case knife crime committed in a public place and where the offender was accompanied by and indeed led on another person. This was a very serious injury indeed imposed upon the victim, necessitating life-saving surgery. In our view, the judge, had this been a case involving an adult, could not properly have taken a starting point of less than 12 years - which was his own indication. But of course this offender was not an adult, he was just over 16 at the time. Clearly that merits a significant reduction in the sentence otherwise appropriate to an adult. With all respect to the judge, however, we do not think that so great a discount as the judge gave to allow for that factor, coupled with the other mitigating factors, can possibly be sustained. We do acknowledge that this is a young man: he has the whole of his life before him, he certainly is in a position to get his act together and lead a lawful and industrious life. We can understand the point that a long custodial sentence will have a significant impact upon him. But the fact is he has been involved in a most serious crime with most serious consequences and engaged in that offending: when, moreover, he has relevant previous convictions and when indeed he had been before the court that very morning on that very day.[27]Giving all due allowance for the age of the offender at this particular time and for such other mitigation as was available, in our view the very least sentence that could properly be imposed with regard to this serious offending is one of seven years' detention. That is the sentence which this court now substitutes and the appeal is allowed to that extent.

Cited in 1 later judgment