T, R. v [2018] EWCA Crim 2464

[2018] EWCA Crim 2464Case No 2018/04228 A2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT SHEFFIELD
His Honour Judge Richardson
T20187120
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/11/2018
Before
THE RIGHT HONOURABLE THE LORD BURNETT OF MALDONLORD CHIEF JUSTICE OF ENGLAND AND WALESTHE HONOURABLE MR JUSTICE PHILLIPSTHE HONOURABLE MRS JUSTICE CUTTS
Between
REGINAAppellantTRespondent
Mr Schofield (instructed by Crown Prosecution Service) for AppellantMr Stables (instructed by The Johnson Partnership) for RespondentHearing Hearing dates: 16 October 2018
Judgment ApprovedThe Lord Burnett of Maldon CJ:
[1]On 18 July 2018 at the Crown Court at Sheffield the offender was convicted of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 following a trial before the Recorder of Sheffield and a jury. He had earlier pleaded guilty to having a bladed article in a public place contrary to section 139 of the Criminal Justice Act 1988. The offending arose out of events which occurred during the evening of 18 March 2018. The offender was born on 21 November 2002. He was 15 years and four months at the time of the offending. He was acquitted of attempted murder.[2]On 10 August 2018 the judge sentenced the offender to five years’ detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for wounding with intent, with no separate penalty for the bladed article offence. The judge set out his reasoning underpinning the sentence in a detailed written judgment which he gave a week later.[3]The matter came before us on an application by Her Majesty’s Solicitor General pursuant to section 36 of the Criminal Justice Act 1988 to make a reference to the Court of Appeal. At the same time, we heard an application for leave to appeal against sentence and for an extension of time.[4]At the close of oral argument, we announced our decision: i) We granted the necessary extension of time but refused leave to appeal against sentence. ii) We granted permission to the Solicitor General to make a reference to the Court of Appeal. iii) We quashed the sentence of five years detention imposed for wounding with intent, and substituted an extended sentence of eight years, pursuant to section 226B of the Criminal Justice Act 2003 (“the 2003 Act”), comprising a custodial element of five years and an extension period of three years.[5]There were various ancillary orders made by the judge which were undisturbed.[6]These are our reasons for reaching those conclusions.

Arguments in Outline

[7]In support of the application for leave to appeal against sentence, it was submitted that the judge located the offending in the wrong part of the material definitive guideline. As a result, his starting point for an adult offender at 14 years’ custody, before reducing the sentence for the applicant’s youth and to reflect mitigation, was too high. It was submitted that the consequence of that error was to arrive at a custodial period for this child that was manifestly excessive. On behalf of the Solicitor General, it was accepted that the custodial term arrived at by the judge was an appropriate one. Mr Schofield submitted that the nature of the offending itself, coupled with what is known about the offender’s behaviour in the years before the night in question and his behaviour since, left no alternative but to conclude that he was dangerous for the purposes of the dangerousness’ provisions found in the 2003 Act. As is apparent from the decision we made, we accepted that submission and concluded that an extended sentence was necessary to provide protection to the public.

The Facts

[8]On the 17 March 2018, Danika Gothard, who was 24 and from Sheffield, had been out socialising with friends. She returned to Sheffield by train and walked home. That took about an hour. She had been expecting her partner to meet her and when she got home they had an argument about that. Just after midnight she left home with a view to staying at her mother’s house. The offender was nearby walking his dog. He was carrying a knife which he later explained was for his protection. The victim walked to her car and as she did so she felt a hand on her shoulder and then a knife pointing at her neck. The offender said “I wanna see what you got” and then with his hand on her shoulder and a knife to her throat guided her away from the car in the direction of a nearby road. She thought she was about to be robbed. She offered her purse and car keys to the offender and told him to take whatever he wanted. He did not respond.[9]The victim believed that she might be sexually assaulted. That potential motivation was not established at the trial. The judge accepted that the motive was robbery. The victim walked a short distance with the offender and then, in an attempt to escape, punched him in the face. He retaliated by punching her nose and then stabbed her under her left arm. She made a desperate attempt to run away, screaming, over a distance of at least 100 metres. The offender chased her, caught up with her and stabbed her a second time. She fell to the ground. He then took her by the shoulders, tried to get her onto her feet and stabbed her a further four times to the upper body and abdomen.[10]Her partner arrived at the scene, having heard the commotion, and asked the offender “what have you done to her?” The offender had the presence of mind to pretend that he had found the victim in that state and was trying to help her. When the police arrived, he maintained that explanation. In consequence, it was the victim’s partner who was initially arrested.[11]The victim suffered serious injury. Two of the wounds were particularly deep and had penetrated the chest. The first penetrated the right lung causing a “very small pneumothorax”. The second went deep into the chest cavity and penetrated the pericardium resulting in hemopericardium.[12]The victim was treated conservatively to begin with but unfortunately the injury to the heart area turned out to be rather more serious than first thought. On 27 March 2018 the victim was re-admitted to hospital where a median sternotomy was performed to clear fluid around the heart and in the chest cavity, and also to free the heart. That resulted in a permanent sternotomy scar of about 12 inches. At the time it was noted that there may be further pericardial problems.[13]The victim’s personal statement, which is dated 26 July 2018, brought the matter up to date for the purposes of sentencing. It speaks of the profound impact that the attack had had upon her, including causing her to sell her home and move away. She describes four procedures that she had been subjected to by that time, including the insertion of a device which she can hear ticking from time to time. She explains that the doctors have told her that the repeated surgery will have had an adverse impact on her life expectancy. The Judge’s reasoning[14]The judge was sure that there had been two episodes of stabbing and that he was dealing with a sustained and repeated attack upon the victim, albeit that the attack was not premeditated. The underlying intent was robbery. The injuries were serious and there was, for the purposes of the assault guideline, higher culpability, given the use of a weapon. The aggravating features included the location and timing of the attack “in a secluded spot in the depths of a bleak winter night”. The offender disposed of the knife. By contrast, he had no previous convictions. He placed the offending within category 1 of the guideline which, for an adult, gave a starting point of 12 years’ custody and a range of nine to 16 years.

The judge referred to three guidelines:

[15]the definitive guidelines for sentencing children and young people (“the youth guideline”), assault, and reduction in sentence for guilty pleas. He noted that the overarching aim of the youth justice system is to prevent offending by young people and with particular regard to the welfare of the young person concerned. He referred to the overarching principles set out in paragraphs 1.1 to 1.10 of the youth guideline (which set out general sentencing principles applicable to children and young people). Of those parts of the youth guideline which concern the welfare of the offender, the judge indicated that he had paid close attention to paragraph 1.12, which requires the court to be alert to mental health problems or learning difficulties, traumatic experiences, problems with communication and vulnerability to self-harm.[16]The judge summarised the effect of the pre-sentence report. It noted significant trauma experienced by the offender at home and that there were concerns about self-harm. He had been exposed to violence in the home and experienced violence himself. He had a diagnosis of Attention Deficit Hyperactive Disorder for which he was prescribed medication and had struggled with education. He had moderate learning difficulties. The author of the report identified five factors which led the offender to commit the crime: first, difficulties with emotional control; secondly, carrying a knife and naivety about his ability to control using it; thirdly, the attack occurred when his medication was wearing off; fourthly, his experience in life was that confrontation should be dealt with by violence; and fifthly, his significant exposure to violence in early life led him to “having a propensity towards extreme violent responses to confrontational situations.”[17]There had been emotional instability and self-harming behaviour in Oakhill Secure Training Centre whilst the offender was on remand, but it was the best place for him. With that in mind, the recommendation in the pre-sentence report was that a custodial sentence of no more than five years would enable the offender to serve all his time before release on licence at Oakhill and avoid his going into a young offender institution. The concern was that his learning difficulties and behavioural problems would make him vulnerable to exploitation in such an institution or in the adult estate, and risk undoing the work done at Oakhill. Moreover, if released after two and a half years from when he was remanded in custody the first part of his licence period would be supervised within the youth justice system, rather than by probation.[18]The judge concluded that a custodial sentence was required and had regard to paragraph 6.46 of the youth guideline which suggests that a sentence of roughly a half to two thirds of the adult sentence might be appropriate for an offender aged between 15 and 17. He noted that emotional development and maturity was as important as chronological age. “Ignoring the special and individual circumstances of the defendant”, the judge came to the conclusion that an adult would face a starting point of 14 years’ imprisonment. The judge then reduced the sentence to seven years to reflect the offender’s age and immaturity; and further reduced it to six years because he had offered a plea to wounding with intent on the first day of his trial (a reduction the judge recognised erred on the generous side). He allowed a further reduction to reflect other mitigation, in particular his disadvantages in life. Finally, having regard to the welfare of the offender, the judge took into account the advantage to him of serving the whole of his sentence at Oakhill and thereby arrived at five years’ detention.[19]During the sentencing hearing, of which we have a full transcript, there was no discussion of whether the dangerousness provisions of the 2003 Act were engaged.

The judge nonetheless addressed the issue in his sentencing remarks, observing:

“I have considered the dangerousness provisions and I am not satisfied they are at all appropriate in this case. Indeed, although there are risks of reoffending. I am unable to say there is a real risk to the public of serious harm being caused by the defendant committing another serious violent crime.”

The offender’s personal characteristics and behaviour

[20]The pre-sentence report summarised by the judge was augmented by a psychologist’s report prepared by Dr James Lang that explained more of the offender’s troubled background. His behavioural and emotional difficulties were apparent from his earliest days of schooling for which special arrangements were necessary. There was almost constant involvement of social services throughout his childhood. He experienced parental substance misuse and the violence to which he and others were subjected led to time in a refuge. He was the victim of emotional abuse. Dr Lang observed that “tailored specialist services to address the impact of the trauma [the offender] has experienced will need to be a significant part of an intervention plan to manage his aggressive responses to confrontation and challenge.”[21]The offender had long been engaging with community mental health services because of his “challenging behaviour” in what were described as “extreme behaviours” in the records. His medication for ADHD is effective in supporting his concentration and engagement but it has not prevented series of episodes of self-harm in the years leading up to the offending. His behaviour remains unpredictable. He is anxious and has social difficulties with a sense that “people were out to get” him.[22]The offender suffers from significant learning difficulties with his overall intelligence as tested suggesting that he would be outperformed by 99% of the population of his age group.[23]Dr Lang noted the offender’s history of aggression to fellow pupils and teachers at school, together with his emotional dys-regulation and aggression at home. He experiences a high level of anxiety and agitation when under stress. He is prone to confrontational behaviour, anger and aggression and can become unpredictably agitated with periods when he feels out of control. In his conclusions Dr Lang noted that the offender would need continued community mental health support, careful review of his medication and formal counselling and therapeutic support in the future, which should include the development of self-regulation skills.[24]Whilst the offender has no previous convictions he has been involved with Community Youth Teams. There have been various incidents, some of which had been dealt with by community resolutions (thereby avoiding prosecution and the criminalisation of a young person) and others were not pursued. An episode in June 2016 was of relevance to the issue of dangerousness when the offender threatened to slash a woman with a knife following an incident involving her son. He has no memory of this. In November 2016 there was another event resulting from a dispute with another child which led to the offender smashing a car with a golf club. The offender suggests that he believed that his family was being threatened. In March 2017 following an argument with a 14 year old girl, the offender punched her to the head several times. He suggests that she started the fight. In July 2017 he was reported to have pulled a knife on a student.[25]It was incidents such as this that led the author of the pre-sentence report to observe:
“… there have been concerns about [the offender’s] violent and aggressive behaviour raised both in the community and in the school. Such incidents have however always been with people known to him in some way. Unfortunately, his difficulties in controlling his anger and aggression, tendency to confrontation and latterly carrying a knife were likely to result in harm to someone at some point. …there is enough evidence of violence, aggression and impulsivity to suggest that without a full programme of intervention there is a high risk of him causing serious harm again.”
[26]Information from Oakhill suggests that the first six months in custody have not wrought the improvement in behaviour that was hoped for. A pre-appeal report dated 11 September 2018, whilst noting good general engagement, refers to 29 incidents which have demonstrated “heightened levels of aggression towards staff members and peers.” 16 were assaults or altercations with peers, eight concerned aggression towards staff members, two were attempted assaults on the offender and the others related to damaging property. In a supplement to that report dated 8 October 2018 its author concluded:
“Overall [the offender] has presented as a difficult and challenging young man with a complex level of needs that Oakhill are supporting with. [The offender] has demonstrated whilst at Oakhill STC he struggles significantly in the ability to manage his emotions effectively, [He] has resorted to high levels of aggression and self-harm when finding it difficult to express his emotions and feelings and has in turn been involved in a number of incidents since his reception to custody.”

Discussion and conclusions

[27]We are in no doubt that the judge was correct in his assessment of the circumstances of this serious offence of wounding with intent. His conclusion that the injuries were serious in the context of an offence contrary to section 18 of the Offences Against the Person Act 1861, and thus fell within the definition of “greater harm” in the assault guideline, cannot be faulted. The nature of the injuries and the description of their impact upon the offender’s victim, which we have summarised, admitted of no other conclusion. Similarly, the judge’s assessment that the offending should be regarded as of “higher culpability” cannot be faulted, for the reasons he gave. It follows that the judge was fully entitled to conclude, for the purposes of the assault guideline, that this was a Category 1 offence with a range for an adult of nine to 16 years’ custody. The starting point of 14 years was not arguably manifestly excessive.[28]The judge took full account of the youth guideline in discounting the starting point to reflect the facts that the offender was only 15, and an immature 15 year old, at the time of the offending. He gave generous credit for the indication of the willingness to enter a plea to wounding with intent if the prosecution did not proceed with the attempted murder count. He recognised the constellation of difficulties suffered by the offender in further reducing the period of custody. Mr Stables, for the offender, submits that the reduction at that stage, even taking account of the further reduction allowed by the judge to achieve a sentence of five years’ detention, was inadequate. We are unable to agree. A sentence of five years’ detention given the nature of the criminality and taking account of all the personal circumstances of this offender cannot be considered as arguably manifestly excessive.[29]For the Solicitor General, Mr Schofield submits that the circumstances of the offence, when coupled with the information available about this offender which describes his violence and aggression both before the offending and after he was taken into custody, should have led the judge to conclude that he was dealing with a dangerous offender for the purposes of the 2003 Act. Moreover, that having come to that conclusion, public protection required the imposition of an extended sentence.[30]Wounding with intent is a specified offence for the purpose of Schedule 15 to the 2003 Act and thus may trigger consideration of the dangerousness provisions. Section 222B of the 2003 Act applies to offenders under the age of 18. It provides, as material:
“(1) This section applies where – (a) a person aged under 18 is convicted of a specified offence … (b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of specified offences, (c) the court is not required by section 226(2) to impose a sentence of detention of life under section 91 of the Sentencing Act, and (d) if the court were to impose an extended sentence of detention, the term that it would specify as the appropriate custodial term would be at least 4 years. (2) The court may impose an extended sentence of detention on the offender.”
Serious harm for these purposes is defined by section 224(3) and means “death or serious personal injury, whether physical or psychological”. The specified offences set out in Schedule 15 cover a large range of offences of violence and sexual offences. R v Lang [2006] 2 Cr App R (S) 3 established that for a risk to be significant it must be more than a mere possibility. “In our view [it] can be taken to mean (as in the Oxford Dictionary) ‘noteworthy, of considerable amount of importance’” – Rose LJ V-P at [17(i)]. (a) a person aged under 18 is convicted of a specified offence … (b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of specified offences, (c) the court is not required by section 226(2) to impose a sentence of detention of life under section 91 of the Sentencing Act, and (d) if the court were to impose an extended sentence of detention, the term that it would specify as the appropriate custodial term would be at least 4 years.[31]Section 229 of the 2003 Act sets out the nature of material which the court must, or may, take into account when determining whether an offender is dangerous. It provides, as material:
“The assessment of dangerousness (1) This section applies where – (a) a person has been convicted of a specified offence, and (b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission of further such offences, (2) The court in making the assessment referred to in subsection 1(b) – (a) must take into account all such information as is available to it about the nature and circumstances of the offence, (aa) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted anywhere in the world, (b) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraphs (a) or (aa) forms part, and (c) may take into account any information about the offender which is before it.” (a) a person has been convicted of a specified offence, and (b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission of further such offences, (a) must take into account all such information as is available to it about the nature and circumstances of the offence, (aa) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted anywhere in the world, (b) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraphs (a) or (aa) forms part, and (c) may take into account any information about the offender which is before it.”
[32]The language of section 229 makes clear that the court may take into account a very wide range of information about an offender in assessing whether he is dangerous.[33]The stabbing incident itself, given its circumstances, in our view provides a strong foundation for the finding of dangerousness. It involved two separate events which demonstrated a prolonged determination to cause really serious harm and was accompanied by disturbing aggression. Its underlying causes are spoken to in the pre-sentence report and include a pre-disposition to aggression and lack of control exacerbated by the weakening effects of medication. The offender’s troubling and sad history, reflected in the reports and the specific incidents to which we have referred, suggest that this attack was an extreme manifestation of an underlying pattern of behaviour. This is not one of those cases where a young person has acted impulsively on an isolated occasion of the sort considered in R v Choudhury [2016] 2 Cr App R (S) 41.[34]The pre-sentence report recognised that the evidence of violence, aggression and impulsivity suggests that without a full programme of intervention there is a high risk of him causing serious harm again. Whilst the hope of all those who will be caring for the offender is that he will respond to the help and support he will get, that is very far from a given. A number of his problems are not simply behavioural. The concerns expressed about his possible reaction to entering a young offender institution or prison are likely to have their parallels in ordinary life. The evidence suggests that this is a very troubled young man with profound difficulties in controlling aggression and impulsivity.[35]The pattern of behaviour whilst at Oakhill, the full details of which were not available to the judge, is disturbing. The precise detail of what underlies the behaviour we have described is not before us, but it is apparent that his first six months in detention have not established him on a sure path away from violence. On the contrary, the difficulties in his pre-offending behaviour continue strongly to manifest themselves.[36]Taking account of all the information available, we have no doubt that this young man is dangerous. That conclusion does not compel us further to conclude that the sentence imposed by the judge was unduly lenient. That is because the imposition of an extended sentence may be avoided if a court decides, nonetheless, that a determinate sentence provides adequate protection to the public. But the combination of information about the offending, the offender’s history and his troubled time during the first six months of detention led us to the view that a determinate sentence, involving a licence period that would provide protection to the public only until this offender was just over 20 years old, was inadequate. Supervision on licence which takes him beyond the very early years of adulthood is necessary to provide protection to the public. It was in those circumstances that we determined that we would quash the sentence of five years detention imposed for wounding with intent as unduly lenient, and substitute an extended sentence of eight years, pursuant to section 226B of the Criminal Justice Act 2003 (“the 2003 Act”), comprising a custodial element of five years and an extension period of three years.