R v Peter McCann [2025] EWCA Crim 549

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 549
IN THE COURT OF APPEAL
Venue Royal Courts of JusticeDate Tuesday 1 April 2025
Strand
London
WC2A 2LL
Before
LORD JUSTICE SINGHMR JUSTICE GOSSMRS JUSTICE HILLREFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988
Between
REXCrownV
Between
PETER McCANN__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR N HOLLAND appeared for Attorney General.MS A NICHOLSON appeared for Offender/Applicant._________JUDGMENT(Approved)
[1]This is an application on behalf of His Majesty’s Solicitor General for leave to refer a sentence to this Court, under section 36 of the Criminal Justice Act 1988 (“the 1988 Act”), on the ground that it was unduly lenient.[2]The respondent offender was born on 4 September 2001 and was aged 19 at the time of the offences. On 25 April 2022, in the Crown Court at Maidstone, the offender (then aged 20) pleaded guilty to two offences. He was not sentenced until 22 January 2025. By then he was 23. He was sentenced by HHJ St John-Stevens as follows. On count 1, an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, there was a suspended sentence order of 2 years’ imprisonment suspended for 2 years. On count 3, an offence of assault occasioning actual bodily harm, contrary to section 47 of the 1861 Act, there was a concurrent sentence of 4 months’ imprisonment suspended for 2 years. There were attached to the suspended sentence order an unpaid work requirement of £120 and a rehabilitation activity requirement of 20 days. A statutory surcharge order was imposed and the offender was ordered to pay compensation of £1,000 to one of his victims. No evidence was offered on count 2, a charge of unlawful wounding, and a not guilty verdict was entered pursuant to section 17 of the Criminal Justice Act 1967. Factual Background[3]The facts are not in dispute and can be summarised for present purposes by reference to the Final Reference filed by the Solicitor General. In summary, the offender attacked a couple on a railway station platform. Together with his brother, he repeatedly punched Phoebe Walkling in the face. She sustained two fractures to her jaw and bruising to her left eye. The offender and his brother repeatedly kicked and punched Aaron Willet-Carter. Mr Willet-Carter sustained a cut lip and bleeding to the nose. The injuries to Phoebe Walkling were the subject of the section 18 charge. The injuries to Mr Willet-Carter were subject of the section 47 charge.[4]The more detailed factual background is as follows. The victims in this case were in a relationship and the assault took place on a platform at Marden Railway Station on Sunday 23 May 2021. The victims had arrived at the station approximately at 19.34 hours on a train from London. They remained on the platform while they waited for a taxi. The offender arrived at the station at approximately 19.50 hours on a train from Ashford International. He was in the company of his brother, Miles McCann, and his girlfriend, Abbie Green. CCTV footage from the train showed the offender consuming vodka. He was in an apparent state of inebriation. He punched the window of the train and his brother and he grabbed hold of Ms Green. CCTV footage from the station captured the lead up to the assault and the assault itself. In the moments leading up to the assault the offender and Abbie Green were arguing with each other. The offender was pushed to the ground by Abbie Green. He chased her and punched her. The offender approached Mr Willet-Carter and said, “Are you laughing at me?” He called Mr Willet-Carter a “cunt”. Ms Walkling positioned herself between the offender and Mr Willet-Carter. She feared the offender was going to assault Mr Willet-Carter. Ms Walkling made physical contact with the offender. In her witness statement, she said she believed she may have pulled his hair. Mr Willet-Carter said that Ms Walkling hit the offender with the open palm of her hand. The offender responded by punching Ms Walkling in the face. During the course of the assault the offender punched Ms Walkling in the face multiple times. He called her “a fucking slut”. Miles McCann also repeatedly punched Ms Walkling. The offender and his brother repeatedly punched and kicked Mr Willet-Carter. The offender told Mr Willet-Carter not to “fuck with” him. Abbie Green punched Ms Walkling once and she also kicked her bag. At the end of the incident the footage shows Ms Green apparently persuading the offender to cease the assaults and move away from the victims.[5]The attack lasted approximately 1 minute and 33 seconds. The police were called by Mr Willet-Carter. He and Ms Walkling made their way to hospital by taxi. Ms Walkling said that she was in unbelievable pain. She sustained bruising and swelling to her left eye and two fractures to her jaw. The fractures required surgery under general anaesthetic to fit a metal plate in Ms Walkling’s jaw. Mr Willet-Carter sustained a cut lip and a bloody nose.[6]The offender was identified from the CCTV footage. In his police interview he answered all questions “no comment”. Abbie Green pleaded guilty to affray and was sentenced to a 2-year conditional discharge. Miles McCann is still wanted by the police in respect of this matter. Procedural History[7]The first appearance at the Magistrates’ Court took place on 28 March 2022. The offender indicated a plea of guilty to an offence under section 18 of the 1861 Act. At that stage the assault on Mr Willet-Carter was also charged as a section 18 offence.[8]The plea and trial preparation hearing took place on 25 April 2022. The offender entered guilty pleas to the offences which are the subject matter of this application. The case was listed for sentence on 6 October 2023 but the Court was not in a position to conclude the sentencing exercise. The hearing was adjourned to 16 November 2023, but did not take place then. The case was not listed by the Court until 22 January 2025. The court has provided no explanation for that delay of around 14 months. The Sentencing Framework[9]The maximum sentence for an offence under section 18 of the 1861 Act is life imprisonment. The Sentencing Council has issued a Definitive Guideline for this type of offence to which we will return. The Sentencing Process[10]As we have said, the offender was aged 19 at the time of the offending. He had no previous convictions at the time of the offences. On 7 January 2021, he received a £90 fixed penalty notice for an offence contrary to section 5 of the Public Order Act 1986. While he was awaiting sentence in these proceedings the offender entered guilty pleas to two offences: the first was assaulting an emergency worker and the second was criminal damage. Those offences took place on 12 June 2022. On 15 August 2022 he was sentenced by way of a financial penalty.[11]For the purpose of the sentencing hearing the judge had various documents before him. There were seven character references in respect of the offender. The offender had written a letter expressing remorse to the judge. There were two victim impact statements made by Phoebe Walkling which were read out during the sentencing hearing. In those statements she describes being in considerable pain for several months after the surgical procedure. A second operation was required resulting in another period of months of considerable pain. After each operation Ms Walkling was restricted to a liquid diet. She states that the shape of her face and jaw has changed. She describes an unpleasant clicking sound when she eats. She outlines the significant emotional and financial impact of the offending.[12]The judge also had a pre-sentence report, dated 12 September 2022 and an addendum report dated 5 October 2023. The author of the reports referred to the offender’s remorse, the positive steps he had taken to address his offending behaviour and the difficulties he will encounter in prison.[13]There was also a psychological report on the offender. The author of the report referred to depression and symptoms of ADHD. The author concluded that the offender would have been less able to consider the consequences of his actions. The author opined that the offender would be more likely to respond aggressively when provoked.

The judge also had sentencing notes on behalf of both the prosecution and the defence.

[15]In his lengthy and considered sentencing remarks the judge had regard to a number of matters, including the decisions of this Court. He gave a full one-third credit for the early guilty pleas. The judge had particular regard to the fact that the offender was both young at the time of the offending and immature. He took into account what this Court has said in respect of such offenders and in particular that reaching the age of 18 does not represent a “cliff edge” for the purpose of sentencing.[16]The judge also had careful regard to the psychological report to which we have referred. He said that, in summary, the combination of increased impulsivity, difficulties regulating anger, a history of difficulties within the family, negative experiences of bullying at school, symptoms of depression, the heavy use of alcohol, which may at the time have combined to make the offender less culpable for the current offending, and that he would also have been less able to consider the consequences of his actions and more likely to act impulsively. The judge had regard to the Definitive Guideline and categorised the culpability as falling into category B and harm as falling into category 2. He referred to the statutory aggravating factors and the mitigating features in this case, which included what the judge considered to be genuine remorse on the part of the offender. He had particular regard to what he considered to be positive character or exemplary conduct and the age and lack of maturity of this offender.[17]Taking account of those factors, he concluded that although the starting point for a category 2B offence by reference to the Definitive Guideline is 5 years’ custody, that, in this case, that could be reduced to as low as 3 years. After giving appropriate credit for the early guilty pleas, the judge was thus able to arrive at the sentence of 2 years’ custody which we have mentioned. The judge then considered the factors against and in favour of suspending that sentence by reference to the Imposition Guideline. It is clear that one factor to which the judge gave particular weight is the severe impact on the defendant’s mental health of the long delay in this case. In conclusion, the judge said that he could see “a man that is matured and was ashamed and disgusted” by what he had done. The judge said that but for the offender’s young age and everything that he had outlined earlier, he would have gone straight to prison for a significant period of time measured “in a large number of years”. Nevertheless, as we have explained, in the circumstances of this case, the judge felt able to pass a suspended sentence order in the terms we have described. The submissions for the Solicitor General[18]On behalf of the Solicitor General, Mr Holland submits that the overall sentence passed in this case was unduly lenient. No issue is taken by him as to the judge’s view that the offender did not need to be sentenced in accordance with the dangerousness provisions of the Sentencing Code. Nor is any complaint made about the concurrent sentence of 4 months’ custody imposed for the offence of assault occasioning actual bodily harm. Mr Holland does submit however, that the sentence for the principal offence, under section 18 of the 1861 Act, was unduly lenient. He submits that this was the result of the cumulative effect of three factors. First, the judge did not make a sufficient upward adjustment to reflect the aggravating features of this case. Secondly, the judge made too large a downward adjustment to reflect the mitigating features. Thirdly, the judge was wrong to conclude that it was appropriate to suspend the sentence in any event. On that last matter, Mr Holland makes the primary submission that the issue of suspension should never have arisen because the sentence ought to have been higher than the 2 years’ which provides the maximum which can be suspended. But in any event, he submits, that although there were factors in favour of suspension they were outweighed by the seriousness of the offending which made it inappropriate to suspend in this case.[19]No issue is taken with the judge’s decision to categorise the offending as falling into culpability category B, that is the medium category. Similarly, no issue is taken with his decision to place the offending into harm category 2. For an offence falling into category 2B, the Definitive Guideline recommends a starting point of 5 years’ custody with a range of 4 to 7 years. No issue is taken on behalf of the Solicitor General with the reduction of the full one-third which was given for the respondent’s early guilty pleas. Complaint is made, however, that it was not properly open to the judge to bring the notional sentence after trial down to as low as 3 years. If it had not been for that notional sentence, it would have been impossible for the sentence to be suspended because it would have had to have been longer than 2 years’ custody.[20]Mr Holland submits that the aggravating features in this case warranted a substantial upward adjustment from the starting point before taking account of mitigating factors. Those aggravating features were the fact that the offender had been intoxicated at the time of his offending, the location/timing of the offence, which was understood to be in relation to the inherent danger caused by the offence taking place on a railway platform in close proximity to a railway line, and the fact that the judge had to sentence for the concurrent offence of assault occasioning actual bodily harm. While no complaint can be made about making the sentences concurrent, Mr Holland does submit that that required some uplift in order to reflect the overall gravity of the offending.[21]Mr Holland accepts that there were the following mitigating features. First, age. The offender was only 19 at the time of offence. Secondly, the offender’s remorse. Thirdly, his immaturity. Fourthly, his ADHD, and fifthly, the unjustified delay in these proceedings. Mr Holland accepts that a substantial downward adjustment was appropriate to reflect those mitigating features but the adjustment down to 3 years’ custody after trial was too great. In all the circumstances, Mr Holland submits that the sentence ultimately passed of 2 years’ custody was unduly lenient and ought not to have been suspended. Submissions on behalf of the respondent[22]On behalf of the respondent, Ms Nicholson submits that the sentence was not unduly lenient although it can fairly be described as lenient. She submits that, first, the judge made a sufficient upward adjustment to reflect the aggravating features of this case. Secondly, the judge did not make too large a downward adjustment to reflect the mitigating features. Thirdly, the decision of the judge to suspend the sentence was a proper exercise of his discretion in the circumstances, having regard to the Imposition Guideline in the context of this respondent’s personal circumstances, the long delay and the fact that there had been no further serious offending over nearly a 44-month period. Ms Nicholson submits the judge, who is highly experienced, was best placed to determine the correct sentence in this case, having had the opportunity to observe the respondent over the course of two hearings and taken careful time to consider the relevant issue. Accordingly, she submits the suspended sentence order does not fall outside the range of sentences which the judge applying his mind to all of the relevant factors could reasonably consider appropriate.[23]She develops those submissions particularly in the following ways. First, there was compelling evidence of genuine remorse. Secondly, there was evidence of positive character and/or exemplary conduct. Thirdly, the judge was right to consider the respondent’s emotional maturity and developmental age was less than his chronological age. Fourthly, the judge noted from the contents of the psychological report that the respondent’s behaviour may be linked to his ADHD. Fifthly, it was not disputed that the respondent was jointly responsible for the care of a young baby and was the sole wage earner. Sixthly, the respondent had found gainful employment. Finally, there was the important factor of unjustifiable delay. This has taken a toll on the respondent in waiting to learn his fate through no fault of his own but, secondly, it has demonstrated that the offences in this case were out of character and that the respondent was committed to his own rehabilitation. Our Assessment[24]We remind ourselves of some fundamental features of the system for referring sentences as being unduly lenient that Parliament created in the 1988 Act. The principles are well established and were summarised, for example, in Attorney-General’s Reference (R v Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16, at [3] and [6]. The principles to be applied on an application, under section 36 of the 1988 Act, can be summarised as follows:[1]The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.[2]A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.[3]Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases.[4]Section 36 is designed to deal with cases where judges have fallen into “gross error”. The Court went on to state, by reference to the seminal decision of this Court in Attorney-General’s Reference (No 4 of 1989) (1990) 90 Cr App R 366 at 371, by quoting Lord Lane CJ as follows:
“… even where this court considers that a sentence was unduly lenient it has a discretion as to whether to exercise its powers.”
Finally, in this context, we remind ourselves of what the Court said at paragraph 6 quoting from Attorney-General’s Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41 at [24], where Potter LJ said that the purposes of the system of Attorney-General’s References include:
“... the allaying of widespread concern at what may appear to be an unduly lenient sentence, and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type.”
[25]We have reached the view that, serious though the offending in this case undoubtedly was, this Court should not interfere with the sentence passed by the judge. It is, with respect, difficult to see how the judge could reasonably have brought the notional sentence after trial down to as low as 3 years and it should arguably have been at least 3½ or 4 years, with the consequence that the sentence, even after giving full credit for the guilty pleas, would have had to be above the maximum sentence of 2 years’ custody which is capable of being suspended.[26]Nevertheless, the Court has concluded that it should not, in the exercise of its discretion, increase the sentence imposed by the Crown Court. This is because of the exceptional combination of circumstances in this case, including in particular the fact that the respondent was young and immature at the time of the offences, the fact that there was a long delay, not only between the offending and the date of pleas but also the date of pleas and the date of sentence, and the fact that he had kept out of trouble in the years up to the date of sentence. We do not think that the public interest would now be served by sending him to an immediate term of custody which will sever his links to the community.[27]We are very conscious of the impact of this offending on the victims, and that there was delay in this case which was not the fault either of the victims or of this offender. We have nevertheless to have regard to the situation which now exists before the court today. In that regard, we have taken into account an email dated 20 February 2025, which gives this Court an update of the respondent’s circumstances. Two features in particular bear consideration from that email. First, the respondent has been engaging well with the requirements of the suspended sentence order. He has taken steps to address his offending and in particular his alcohol misuse in the past. The second feature is this. The report informs the court of what the impact of a custodial sentence, if made immediate, would now be. This would impact his family life, employment and accommodation. He currently lives with his partner and their 5-month old daughter. He has secured part-time employment. Therefore by receiving an immediate custodial sentence, this would mean that he would lose his employment and it would impact on his daughter’s life and may risk his accommodation. For all those reasons, we have reached the conclusion that this is one of those exceptional cases in which the Court should exercise its discretion not to increase the sentence imposed by the Crown Court. Conclusion[28]For the reasons we have given, we grant the Solicitor General leave to refer the sentence to this Court, under section 36 of the 1988 Act, but, in the exercise of this Court’s discretion, we do not interfere with that sentence.[29]One final matter needs to be addressed, which has been drawn to our attention by the Registrar. It appears that the judge erred by sentencing the offender to a term of imprisonment. As he was aged 20 at the date of conviction, the judge should have imposed a sentence of detention in a young offender institution under section 262 of the Sentencing Code. For the avoidance of doubt therefore, we record that the sentence of imprisonment apparently imposed by the Crown Court was unlawful due to a technical defect in the pronouncement but in accordance with approach in R v Stocker [2013] EWCA Crim 1993; [2014] 1 Cr App R(S) 18, there is no need to allow the Reference on the basis of a purely technical defect. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 34. Email: rcj@epiqglobal.co.uk