England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Friday 19th July 1996

B E F O R E :

MR JUSTICE CRESSWELL

and

HIS HONOUR JUDGE ALLEN

(Acting as a Judge of the CACD)

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R E G I N A

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ANDREW PAUL HOOKEY

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR J COUNSELL appeared on behalf of the Appellant

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JUDGMENT

( As Approved by the Court )

Crown Copyright

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Friday 19th July 1996

MR JUSTICE CRESSWELL: On 22nd January 1996, in the Crown Court at Winchester, before His Honour Judge Burford QC, the appellant pleaded guilty, following a change of plea, to three indictments. On 9th February he was sentenced as follows. On the first indictment, count 1, wounding with intent to do grievous bodily harm, 42 months' imprisonment; on count 3, assault occasioning actual bodily harm, 12 months' imprisonment concurrent, and on count 4, having an offensive weapon, 12 months' imprisonment concurrent. On the second indictment, for possessing a prohibited weapon, 6 months consecutive. On the third indictment, producing a class B controlled drug, 2 months' imprisonment consecutive. Thus the total sentence amounted to 4 years and 2 months' imprisonment.

As to the co-defendants, on 31st January Leon Clarke was convicted of counts 1 and 4, wounding with intent to do grievous bodily harm and having an offensive weapon, and was sentenced on 9th February to

4 years and 18 months' imprisonment concurrent. He pleaded guilty on a change of plea to the third indictment, producing a Class B controlled drug, and was sentenced to 2 months' imprisonment to run consecutively. Thus the total sentence in his case was

4 years and 2 months' imprisonment. Sean Clarke was acquitted on the first indictment.

The appellant appeals against sentence by leave of the single judge.

On 22nd June 1995 the victims, Andrew Buchanan and Alan Gerrish, left the Square Brewery public house at about 11.20 p.m. They passed a burger van, where the appellant and his co-defendants were standing. The appellant was abusive towards the two men. Mr. Gerrish approached him and had a short conversation with him. The two victims walked on towards home. The appellant and his co-defendants followed and then chased the two men. The appellant was carrying a baseball bat.

The two victims ran in different directions. The appellant swung at Mr. Buchanan with the bat and hit him on his forehead. The appellant ran off. Mr. Buchanan flagged down a passing motorist and asked that motorist to ring the police.

Mr. Gerrish was punched and then struck several times with the baseball bat and a chain carried by the co-defendant, Leon Clarke. Mr. Gerrish tried to escape but was struck again several times with the baseball bat. Both victims were taken to hospital. An examination of Mr. Buchanan revealed that his forehead appeared slightly deformed and swollen and he was tender over the bone above his right eye. He was slightly confused in his speech. He was admitted for observation. He had previously been admitted to hospital for a severe head injury. Mr. Gerrish was found to have facial injuries, a weal on the left side of his abdomen, one foot long by one inch wide. There were abrasions over his left leg, just below the knee and left thigh. The wounds were cleaned and a dressing applied to the wound just below his left knee.

On 23rd June the appellant was arrested and his premises searched. Police officers found a stun gun and a container with a number of small plants. The plants were identified as cannabis plants. The stun gun was examined and found to be a weapon designed to incapacitate people and appeared to be quite capable of doing so.

The appellant is 23. He has no relevant previous convictions. A pre-sentence report dated 21st October 1990 records the appellant as saying that he had consumed about eleven pints of lager and was fairly drunk on 22nd June.

Mr. Counsell, on behalf of the appellant, has argued that the sentence was excessive and/or wrong in principle inter alia because the second and third indictments contained unrelated offences of a lesser degree of gravity, and the offences in respect of those indictments should have been concurrent.

Mr. Counsell also referred to the plea of guilty, and submitted that the judge failed to have sufficient regard to the totality principle. He also argued that the sentence of 6 months in respect of a stun gun was excessive. While making no complaint in respect of the sentence on the first indictment, he referred us to the decision in R v. Cozens [1996] Crim. L.R. 522.

The use of a baseball bat is an extremely serious matter, and it has correctly been conceded on behalf of the appellant that the sentence imposed in respect of the first indictment cannot be faulted. The stun gun was a prohibited weapon as so defined by section 5(1)(b) of the Firearms Act 1968 (as amended) and a consecutive sentence was appropriate. A further short-term consecutive sentence was also appropriate in respect of the third indictment, producing a Class B controlled drug.

In R v. Cozens (supra) this Court stated that the decision in R v. Waite (1992) 13 Cr.App.R.(S.) 26, illustrated the principle that it might be unjust to impose a short consecutive sentence if the effect would be to place the offender in a different category, so that he would have to serve a sentence out of all proportion to the additional short sentence. The effect of the consecutive sentence for breach of bail was to subject the appellant to the possibility of serving an additional 11 months in custody. If the sentencer's attention had been drawn to Waite he might have taken a different view, even though the 6 months was otherwise unobjectionable.

It does not appear that the learned judge's attention was drawn to the case of Waite. In all the circumstances, we consider, having regard to the decision in Cozens, that it is appropriate to reduce the sentence in respect of possessing a prohibited weapon from 6 months consecutive to 3 months consecutive. All the other sentences imposed will stand. In the result the total sentence will be reduced from 4 years and 2 months' imprisonment to

3 years and 11 months' imprisonment. To that limited extent this appeal is allowed.