England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Thursday 16th January 1997

B E F O R E :

LORD JUSTICE JUDGE

MR JUSTICE MANTELL

and

THE RECORDER OF BRISTOL

HIS HONOUR JUDGE DYER

(Acting as a Judge of the CACD)

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R E G I N A

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STEVEN EDWARD GREEN

DENNIS PAUL GREEN

JAMES PETER WELSH

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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 H GRIFFITHS appeared on behalf of the Appellant S Green

MR P WAKEHAM appeared on behalf of the Appellant D Green

and Welsh

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Thursday 16th January 1997

LORD JUSTICE JUDGE: On 30th September 1996 in the Crown Court at Luton before His Honour Judge Moss and a jury these three appellants were convicted of violent disorder, contrary to section 2(1) of the Public Order Act 1986. The Greens (as I shall call Stephen Edward Green and Dennis Paul Green) were also convicted of causing criminal damage, contrary to section 1(1) of the 1971 Act, and Welsh pleaded guilty to that count. The value of the damage to property was less than £5,000. A fourth defendant, Paul Green, was acquitted and discharged.

The three appellants were sentenced as follows. Stephen Green, three years' imprisonment on count 1 and twelve months' imprisonment, to run concurrently, in respect of count 2. The total sentence therefore was three years' imprisonment. Dennis Green was sentenced to four years' imprisonment on count 1 and twelve months on count 2, to run concurrently. The total sentence was four years' imprisonment. James Welsh was sentenced to four years' imprisonment on count 1 and nine months' imprisonment on count 2, to run concurrently. In addition he was sentenced to one month's imprisonment, to run concurrently, for (and I use shorthand) breach of bail. The total sentence on him was four years' imprisonment. All three now appeal with the leave of the single judge.

The sentences imposed on count 2 exceeded the statutory maximum. The maximum sentence available was three months. We shall therefore quash all the sentences on count 2 and substitute three months, to run concurrently with the sentences on count 1.

The appellants were involved in a very unpleasant incident. It took place as a revenge attack, or possibly a warning attack, by way of retribution for what was believed to have been an assault by a young man called Darren Tutt on a relative of the Greens named Nicky Harrington. We do not have any details of the precise events, but we shall assume that Tutt had assaulted Nicky Harrington and had done so in such a way that the fist which had carried out the assault required some attention in hospital.

On 19th October 1995, Harrington's uncle, first, and then his mother, went to the address of the Tutts in Leighton Buzzard. They both, and she in particular, remonstrated in very strong terms with the young man's father about the assault on her son. So far, no problem; all perfectly reasonable when one stands back and analyses it. But she left stating that the "big boys from Dunstable would be visiting". So indeed they did.

It was about 8.15 pm, dark, when these three appellants and two others drove into the cul-de-sac in which the Tutts' home was located. They left the car. Witnesses saw at least two of them carrying a baseball bat and a metal bar between them. There may well have been other weapons. This group -- that is a euphemism for what was in effect a mob of five -- went up to the front door and demanded of those who answered it where Darren Tutt was. The two people who answered the door were Darren Tutt's father, Raymond, and a man called John Fairweather. One of the defendants grabbed hold of Fairweather, pulled him out of the house and hit him on the arm with a baseball bat. Raymond Tutt went to assist. He too was grabbed. An effort was made to get him outside. As he was steadying himself to avoid that, he was punched full in the face. Two frames of glass from the front door (the top and the bottom) were smashed in. Glass imploded into the hallway and lounge, where a woman and a 3-year-old grandchild were. Damage was then caused to the front, the rear and the side windows of the car belonging to Raymond Tutt, which was parked outside his house. Very substantial damage was caused, worth approximately £2,000, and some of the windows were simply smashed into fragments.

Their work done, this mob got back into their car and drove away. They failed to stop when police vehicles tried to get them to stop. But eventually the car did stop and all but the driver, who disappeared and has not been traced, were challenged by the police. A policewoman was punched in the face during the course of this arrest.

They were interviewed. The appellant Welsh admitted having been in the car. He denied any involvement in the incident. Dennis and Stephen Green denied any involvement. They said they had been drinking at a house in Northfields (which was not far away) and had got into this vehicle and were then stopped by the police.

The case proceeded as a trial, a feature of the appeal of major significance. But, in summary, this was mob violence. It was a planned attack on a home by a group of men (all three appellants with criminal records and two with very substantial criminal records indeed) who had armed themselves with weapons with which to attack and cause fear, and no doubt intending that, if Darren Tutt had been present at the house and they had got hold of him, he should have a severe beating.

Apart from the injuries to Mr Tutt and Mr Fairweather, which, it is fair to say, were not of major significance and, as injuries, can be described as relatively minor, and the damage to Mr Tutt's car, what these victims and members of their family felt, feelings shared by witnesses and neighbours nearby, was a very powerful sense of fear. This was a very serious incident of violence.

Stephen Green was 23 years old at the time of the offence. He had five previous convictions for offences of driving and dishonesty. His penalties had been financial in nature and he had not been sent to custody before.

Dennis Green was 32. He was unemployed. He had numerous previous convictions for offences of dishonesty, burglary, driving matters, violence and damage. His last conviction was indeed for criminal damage and threatening behaviour, for which he had been imprisoned for three months at Dunstable Magistrates' Court and from which sentence he had recently been released.

James Welsh was 33 years old. He was living at the home of the Greens. He had a very long record of previous convictions, totalling something like twenty previous court appearances for offences of violence, criminal damage, motoring offences and dishonesty. The most recent of his convictions was in July 1995. He was convicted for motoring matters and criminal damage. The total sentence imposed on him then was six months' imprisonment.

In his sentencing remarks the learned judge reflected on the serious view that had to be taken of "violent disorder that takes place on the doorstep of people who really do not have any responsibility or culpability for what may have taken place before". He noted that the violence was random; that a number of ordinary members of the public (in the sense that Mr Tutt and Mr Fairweather were not) were caught up in it. A lady called Mrs Thompson was plainly very deeply upset by the incident. He went on:

"You cannot have people going around tanked up with alcohol, armed, attacking other people on their own doorstep and damaging property at the same time."

He plainly, and in our judgment entirely correctly, formed the view that this was a very serious case.

The argument that has been developed before us with great care by Mr Wakeham, and, if we may say so, very helpfully, is to argue the single point that is available to him. The maximum sentence for the offence of violent disorder is five years. His argument is that, given the circumstances, this was not the most serious case of its kind. He highlights, in particular, the absence of any serious personal injury of a physical kind on any individual affected by the crime. He also, in his grounds of appeal -- and we take account of this -- drew attention to the fact that, in the end, the incident came to an end when the appellants backed away and left the scene.

We have reflected on that submission. We recognise that the violence could have been worse than it was. But then we cannot help noting that, if serious physical injury had been suffered by any of the victims, the offence charged would have been likely to have been more serious and the maximum sentence available to the court to have been much longer.

Mr Wakeham made a point with much less validity -- indeed we can find none -- in relation to the fact that the four-year sentences were long-term sentences for the purposes of the 1991 Act.

We have reflected carefully on the arguments then adopted on behalf of Stephen Green by counsel, equally economically and clearly. But this case proceeded as a full trial, and as we endeavoured to indicate in argument, that has two consequences, the second often overlooked. The first consequence is that the appellants were not entitled to the reduction in sentence which would undoubtedly have followed a plea of guilty. The second consequence is that the trial judge sat with the jury listening to this case unfold. He heard every piece of evidence from each side. He was in the best position to form a view of a number of factors which are involved in sentencing: the seriousness of the case and its impact on all those who became involved in the crime; the attitude of the appellants to their crime and whether they had any understanding or remorse of any kind of the effect of this violence on those who suffered as a result of it.

We can see no reason for concluding that the judge's analysis, as reflected in the sentences passed by him, is open to criticism. Accordingly, save to the extent of the reduction in sentence on count 2, these appeals will be dismissed.