Cartwright, R v [2017] EWCA Crim 2062

Case No 201704626/A3

[2017] EWCA Crim 2062

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday, 15 November 2017

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE HOLROYDE

MRS JUSTICE NICOLA DAVIES DBE

RECORDER OF MAIDSTONE

(HIS HONOUR JUDGE CAREY DL)

(Sitting as a Judge of the CACD)

REFERENCE BY THE ATTORNEY GENERAL UNDER

S.36 OF THE CRIMINAL JUSTICE ACT 1988

Between

R E G I N ACrown

Between

SCOTT CARTWRIGHT

Mr P Jarvis appeared for Attorney General

Mr R Holland (Via Video Link) appeared for Offender

Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

J U D G M E N T

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LORD JUSTICE HOLROYDE:

[1]On 12th May 2017 in the Crown Court at Manchester Crown Square, Scott Cartwright, then aged 17, pleaded guilty to offences of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861; threatening another with an article with a blade or point, contrary to section 139AA of the Criminal Justice Act 1988; and assault by beating, contrary to section 39 of the Criminal Justice Act 1988. The first of those offences was directed against a youth of similar age, Nathan Meek. The second and third were directed against another youth, Brogan Cunningham.

[2]On 20th September 2017, having considered a detailed pre-sentence report and a psychiatric report prepared particularly with a view to the issue of dangerousness, the very experienced judge sentenced Scott Cartwright to a youth rehabilitation order for 24 months on count 1, with no separate penalty on counts 2 and 3. The youth rehabilitation order was accompanied by an intensive supervision and surveillance requirement with extended activity for 180 days, a 6 months curfew requirement and a 3 months exclusion requirement.

[3]Her Majesty's Attorney General now applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence to this court as unduly lenient. We grant leave.

[4]We express our gratitude to Mr Jarvis, on behalf of Her Majesty's Attorney General, and to Mr Holland, appearing today as he did in the court below for Mr Cartwright, for their written and oral submissions. We have been greatly assisted by them.

[5]The offences were committed on 19th April 2017, when Scott Cartwright was aged about 17 years and 9 months. He had no previous convictions. His one previous encounter with the criminal justice system had been a caution as a 14-year-old for an offence of attempted theft. At about 8.00 pm on 19th April he was standing outside a shop with a group of other youths. By his own account he was then intoxicated, having during the day consumed two pints of lager, a large number of alcopops and a quantity of cocaine. He was wearing a large knife or machete in a sheath which was strapped to his chest over his clothing. The court has been provided with photographs of the knife. It is a frightening looking weapon with a blade some 30 centimetres in length, bearing the inscription "The Hunter".

[6]Nathan Meek and Brogan Cunningham walked past the shop. According to Scott Cartwright's account (although Nathan Meek did not accept this) Meek had at some previous time sent unpleasant texts to Cartwright's younger sister. As Meek and Cunningham were passing the shop, Cartwright shouted to Meek something about "messing with his sister". Meek told him to "chill out". He repeated that suggestion when Cartwright shouted to him to accompany Cartwright over to a nearby grassed area. Cartwright then punched Meek in the eye causing him to step back. Meek shouted at him and at that point Cartwright pulled the knife from its sheath and began to swing it at Meek. Meek and Cunningham ran off. Cartwright pursued them, brandishing the knife threateningly. It was this threatening with the knife which, as we understand it, founded counts 2 and 3 in relation to Cunningham.

[7]Meek then stopped and turned to face Cartwright, who swung the knife at him about five times before running away. One of the blows struck Meek's upper left arm, causing a long, deep wound which cut down into the muscle. The wound was bleeding profusely and Meek was taken to hospital where the injury was sutured. He is left with a 7 centimetre scar and with a reduction of the strength in his left arm which is expected to be permanent. In his victim impact statement he speaks, unsurprisingly, of having also suffered a loss of confidence and of feeling anxious about going out into public places.

[8]Within a short time police officers went to a house where Cartwright was staying. He came to the front door holding the machete but dropped it when the police threatened to Taser him if it became necessary.

[9]In interview, he said that he had bought the machete that day from a shop because he wanted to add it to his collection. He said that he was on his way home to do that when he saw Meek and Cunningham. He said that he wanted to "have a go" at Meek about the unpleasant text messages, but not in a way which would have involved use of a knife. He said that he only produced the knife because he thought Meek and Cunningham were together advancing on him with aggressive intent. He said that he had then pursued them as they ran from the scene because he thought they were going to retrieve a weapon which they had concealed nearby. He accepted that there was no basis for these views, and suggested that the cocaine which he had taken had made him paranoid.

[10]Cartwright was remanded in custody. In all he remained in custody for almost 5 months from 21st April 2017 until he was sentenced on 20th September 2017. He entered guilty pleas at an early stage of the proceedings, in circumstances which entitled him to full credit.

[11]The pre-sentence report was a detailed and careful document. The author assessed Cartwright as being genuinely remorseful. That remorse was also evident in a letter which Cartwright himself had written to the court.

[12]The author of the report said this at paragraph 2.10:

"Scott informs me that in the three months leading up to the offence he had been associating with a different group of peers, some who were older and known offenders. It was during this period that his behaviour spiralled out of control. He was no longer living at home, instead sofa surfing at various addresses. In addition he was using cocaine and alcohol on a daily basis and had accrued substantial debts as a result of funding this habit."

[13]The author went on to record that Scott Cartwright had described a feeling of invincibility whilst under the effects of cocaine but coupled with high levels of paranoia. He told the author of the report that on reflection he could see how his use of that drug had adversely affected both his thinking and his behaviour.

[14]The author noted that until a period of about 3 months preceding this offending Scott Cartwright had been living with his parents and had been abiding by their rules of behaviour. His attitude and general behaviour had been law abiding and pro social. Discussion with Cartwright's parents confirmed that account and confirmed the decline in his behaviour once he had begun associating with others who were plainly a bad influence upon him.

[15]The author of the pre-sentence report did not regard Cartwright as meeting the statutory definition of dangerousness. She pointed out that this offending appeared to be an isolated incident on the part of a youth who was of generally good character. She proposed that a youth rehabilitation order, with an intensive supervision and surveillance requirement would be the form of disposal which would best protect the public in the long term.

[16]The psychiatric report of Dr Mohammad Rahman endorsed that suggestion as to disposal. He gave a detailed account of Scott Cartwright's personal history, which included some early evidence of fighting at school and some dissocial behaviour and a number of examples of relationship breakdown with members of his family. Dr Rahman said that although Cartwright does not have a history of mental disorder, he did display a number of signs and symptoms which would require careful monitoring. He did not however display any clear evidence of a violent attitude.

[17]The doctor expressed the view that the risk of violence would be likely to increase if Cartwright were using psycho-active substances. He regarded him as a youth who was influenced by peer suggestions, and said that should be considered in future risk management. He said that from a mental health perspective Cartwright required early intervention in psychosis, a service focusing on young persons who are at risk of developing psychotic illness. Such services, he noted, would unfortunately not be available within any custodial setting.

[18]Prosecuting counsel submitted to the learned judge that it was relevant to consider what sentence would be appropriate for an adult offender. Having regard to the Sentencing Council's Definitive Guideline on Sentencing for Offences of Assault, counsel submitted that the offence charged in count 1 would be at the top end of the range for a category 2 offence of wounding with intent. In the case of an adult that would result in a starting point of 6 years' custody and a range of 5 to 9 years after trial.

[19]Counsel reminded the judge that count 2, if committed by one aged under 18, carries a mandatory minimum term of 4 months' custody in the form of a detention and training unless the court is of the opinion that it would be unjust to impose such a sentence. He also invited the attention of the learned judge to the Sentencing Council's Definitive Guideline in relation to the sentencing of young offenders.

[20]Mr Holland, for his part, urged the judge to follow the recommendations contained in the reports. He reminded the judge that there had been a lengthy remand in custody, which was relevant in a number of ways. In particular, he submitted that it would be unjust now to impose the minimum sentence on count 2.

[21]By his advocacy Mr Holland successfully overcame some initial and understandable scepticism on the part of the learned judge as to whether this really had been a chance encounter and the offences really had been unpremeditated.

[22]In his sentencing remarks the learned judge commended the reports which had been prepared. He observed that an adult offender, even after a guilty plea, could expect to go to prison for about 5 years. He referred to the need to have close regard to the individual circumstances of a young offender. He accepted that there may have been some unpleasant background as between Meek and Cartwright's sister, though that, of course, did not justify the offences.

[23]The judge made no finding of dangerousness. He identified the issue which he had to determine as being whether there should be a determinate custodial sentence or whether the appropriate disposal was the youth rehabilitation order proposed in the reports. At page 22 of the transcript of proceedings he said this:

"There are, as I have said, a number of unusual features about this case, firstly, not only the defendant's lack of a significant previous record or the guilty plea but that the defendant was plainly under the influence of drugs at the time and this was not an incident stemming from inherent mental instability but drug fuelled temporary psychosis, as Dr Rahman has so clearly and eloquently made clear. The defendant comes from a caring family who have attended today who are fully supportive of him."

The judge then referred to plans sensibly made by Cartwright's family for him to leave the area and live with his grandmother some distance away. At page 23C the judge concluded:

"In all of these circumstances I am satisfied that the [interests] of justice are best served by this young man, who has plainly taken a seriously wrong turn in his life, to be the subject of the youth rehabilitation order, which is proposed along with intensive supervision and surveillance."

He then spelled out the details of the order to which we have referred.

[24]For Her Majesty's Attorney-General Mr Jarvis submits that in reality this was, for an adult offender, a category 1 offence of wounding with intent. It involved not only greater harm, because it was a sustained or repeated assault, but also higher culpability because it involved use of a weapon. Mr Jarvis points out that it is only by good fortune that substantially more serious injury was not suffered by the victim.

[25]Mr Jarvis argues that in the account he gave of events Scott Cartwright had tried to minimise the seriousness of his offending. He submits that there are a number of aggravating features. First, the fact that the offence was committed at night. Secondly, the ongoing effect on Meek. Thirdly, the presence of others including in particular Cunningham. Fourthly, the fact that Cartwright was under the influence of drink and drugs. Mr Jarvis submits that in so far as the learned judge may have considered Cartwright's intoxication to be an unusual feature which mitigated the seriousness of the offence, that was an error. He submits that such mitigation as was available to Cartwright was limited to his previous good character and a degree of remorse.

[26]Overall Mr Jarvis submits that an adult offender, after trial, would have been likely to receive a sentence which could have been in excess of 10 years' imprisonment. Even giving full weight to the considerations set out in the Definitive Guideline on Sentencing Young Offenders, he submits that this offence, committed by someone approaching the age of 18, was so serious that a non-custodial sentence simply could not be justified. Having regard to Cartwright's age at the time of the offending, he submits that the sentence should have been a custodial one and the length of the custodial term should have been not less than two-thirds of the appropriate sentence for an adult offender.

[27]Mr Holland submits that the learned judge carefully and conscientiously addressed a sentencing dilemma: on the one hand this was plainly serious offending; on the other hand, it had to be viewed against the background of previous effective good character. Mr Holland argues that on the basis of the detailed reports the learned judge was correct to conclude that there was here a good prospect of rehabilitation. No doubt the judge could have imposed custody but, submits Mr Holland, he was not unduly lenient in dealing with the case as he did.

[28]Mr Holland was unfortunately not able to address the court to the effect that the learned judge's optimism had been borne out. There is before the court an updating report from the Probation Service which shows that, after a less than complete compliance with the requirements of the order, Scott Cartwright has recently fallen entirely out of contact with both his family and with those supervising him. All the indications are that the ending of contact coincides with Cartwright having learned that this appeal was to come before the court. It seems to us that, regrettable though it is that Cartwright is therefore absent from the proceedings, that is no bar to our hearing this Reference today. Both counsel accept that that is so, in particular because it seems clear that Cartwright is aware of this hearing.

[29]It also seems to us that for a young man, facing the prospect that what has been a non-custodial sentence may become a significant custodial term, an element of panic is at any rate understandable. Mr Holland is not able to point to successful performance as a factor in Cartwright's favour, but nor do we think it would be proper to regard it as a factor against Cartwright in this hearing that he has, it would seem, lost his nerve and endeavoured to avoid the proceedings.

[30]We have therefore reflected on the written and oral submissions of counsel. Looking first at the adult offending guideline for the offence charged in count 1, it does seem to us that there is force in Mr Jarvis' submission that that offence could properly be categorised as a level 1 offence. It involved, in our view, a sustained assault, not simply because of the repeated swinging of the machete but, more importantly, because the initial punch was then followed by a pursuit in order to use the machete. Even if that point may be thought arguable, on any view it was, at the very least, a most serious example of a category 2 offence. It had the aggravating features which Mr Jarvis has identified, and there was little to set in the scales by way of mitigation. Looking at the matter overall, it seems to us that in the case of a mature adult offender convicted after trial, a sentence of 10 years' custody would have been difficult to appeal. To put the matter at its lowest, we cannot think that a sentence after trial of less than 9 years' custody could have been justified. That would result of course in the case of an adult offender in a sentence of 6 years' custody after giving credit for a plea.

[31]We turn next to the important principles set out in the Sentencing Council's Definitive Guideline as to Sentencing Children and Young People. We begin by reading the first two paragraphs of that guidelines in the section entitled "Sentencing Principles":

"1.1 When sentencing children or young people (those aged under 18 at the date of the finding of guilt) a court must have regard to: • the principal aim of the youth justice system (to prevent offending by children and young people); and • the welfare of the child or young person. 1.2. While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour."

[32]Subsequent paragraphs emphasise that when sentencing a young offender, custody should always be a measure of last resort. At paragraph 1.5 the guideline emphasises the importance of bearing in mind any factors which may diminish the culpability of a young person who is not as fully developed and not as mature as an adult. That immaturity can impact on decision making and risk-taking behaviour. Paragraph 1.5 continues:

"It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour. When considering a child or young person’s age their emotional and developmental age is of at least equal importance to their chronological age (if not greater)."

[33]Finally, with reference to the Definitive Guideline, we note that at paragraph 4.5 the court is directed to consider the extent to which the offence was planned, the level of force used and the awareness that the young person had of his actions and the possible consequences of those actions. The paragraph goes on to list other pertinent factors which we have had in mind.

[34]Emphasising that if a custodial sentence really is unavoidably necessary, it must be for the shortest period commensurate with the seriousness of the offending, the guideline states this at paragraph 6.46:

"When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age."

[35]The learned judge was understandably concerned to apply that guideline. We recognise that the individualised approach which must be taken with young offenders may, in many cases, properly result in a form of disposal which is significantly different from that which would be appropriate in the case of an adult offender. We understand why the learned judge was anxious to take, if he could, a course which would promote the rehabilitation of a young offender who, until a short while before these offences, had been leading a law-abiding life. These are matters requiring anxious consideration. It is abundantly clear that the learned judge gave them anxious consideration. We too have done so.

[36]With all respect to the learned judge, that anxious consideration has led us to conclude that he did fall into error in failing to give sufficient weight to the sheer seriousness of this offending. The following features of the offending are, in our judgment, important.

[37]First, Scott Cartwright was out and about in darkness or at dusk, with a fearsome weapon strapped to his chest. We are bound to say it seems most unlikely that he had just purchased it at around 8.00 pm, but even if he had, he clearly did not make his way straight home in order to keep it safe within the house.

[38]Secondly, although the learned judge was correct to conclude that there was no evidence of premeditation, there is no escape from the fact that Cartwright was very quick to draw the knife when the occasion arose. He cannot have forgotten that he was wearing it on his chest when he first chose, as he put it, to have a go at Meek and when he began the violence by punching Meek in the face. Having started the violence in that way, he then pursued both Meek and Cunningham and used the weapon in the way which we have described. Even on the most favourable interpretation, accepting that Cartwright did not initially intend to use the knife to threaten or to injure, those facts starkly illustrate how quickly circumstances can alter when knives are carried and when those who are carrying them involve themselves in some form of dispute. This, of course, is one of the reasons why the carrying of knives in public places is a matter of substantial public concern.

[39]Thirdly, having started violence with a punch, Cartwright then chose to pursue Meek and Cunningham clearly intent on attacking one or both of them with the knife. He swung the knife repeatedly. He caused a serious wound to Meek's upper arm in circumstances where a much more serious injury, or even death, could easily have been caused. Looking at the position on the upper arm of the wound, we observe that had the movement of the machete been only a few inches higher, whether because it was swung at a higher level, or because Meek happened to duck at the wrong moment, it would have missed the shoulder and would instead have struck the neck.

[40]Fourthly, Cartwright's intoxication was a significant aggravating feature. He had not only intoxicated himself with alcohol, he had also consumed a Class A controlled drug.

[41]Fifthly, we agree with the learned judge that this sadly is a case in which Cartwright had taken a seriously wrong turn in his young life. We do not underestimate the malign effect on someone of his age of peer pressure and the bad influence of others. But we must set against that the clear evidence that Cartwright had a supportive family, to whom he could turn for help. He was not suffering from mental illness and, importantly, there is nothing to suggest that he was any less mature than others of his age. Plainly the offending was out of character. But that factor has to be weighed against the seriousness of what he did.

[42]Sixthly, we note that although of course aged under 18, Cartwright was within less than 3 months of becoming in law an adult.

[43]Lastly, we agree with Mr Jarvis that only limited mitigation was available to Cartwright. In our judgment, it could carry only limited weight against such serious offending.

[44]In those circumstances, we have reached the conclusion that a non-custodial sentence simply could not be justified. Even for a young offender such as Scott Cartwright, the seriousness of the offending required a significant custodial sentence. We are very conscious that our decision will involve, in the particular circumstances of this case, not only an increase in sentence which is a very substantial one from the perspective of a young offender, but also the feature that Scott Cartwright, having been released from custody after some 5 months of pre-trial remand, will now have to return to custody. In the particular circumstances of one as young as Scott Cartwright, it seems to us that that is a matter which we can and should reflect by a reduction from the level of sentence which would otherwise be appropriate. We also take into account that since the order was made in the Crown Court, Scott Cartwright has been subject to, and to a significant extent complying with, the requirements of the non-custodial sentence imposed below.

[45]In those circumstances, we quash the youth rehabilitation order imposed in relation to count 1 as being unduly lenient. In its place we impose a sentence of detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for a term of 3 years. Having reflected on the helpful submissions of counsel, we think it best to follow the course taken by the learned judge below and impose no separate penalty on counts 2 and 3. Thus the total term which must be served will be one of 3 years' detention. That sentence will take effect from the date on which Scott Cartwright surrenders or is apprehended pursuant to the warrant which has been issued. We direct that he surrender at Longsight police station by 4.00 pm today. We add for completeness that the time previously spent on remand in custody will of course count towards the sentence which we have now imposed.

[46]Mr Jarvis, Mr Holland, thank you both for your assistance. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400