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Attorney General Reference 17 of 1998 (Stokes) [1998] EWCA Crim 2720 (2 October 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/2720.html
Cite as:
[1999] 1 Cr App R (S) 407,
[1999] 1 Cr App Rep (S) 407,
(1999) 163 JPN 234,
[1998] EWCA Crim 2720,
[1999] Crim LR 92,
(1999) 163 JP 279
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ATTORNEY GENERAL'S REFERENCE No. 17 of 1998 (ELLEN MARIE STOKES) [1998] EWCA Crim 2720 (2nd October, 1998)
No:
9801575/R2
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
The
Strand
London
WC2
Friday
2nd October 1998
B E F O R E :
THE
VICE PRESIDENT
(LORD JUSTICE ROSE)
MR
JUSTICE SACHS
and
MR
JUSTICE MOSES
- - - - - - - - - - - -
ATTORNEY
GENERAL'S REFERENCE
No.
17 of 1998
(ELLEN MARIE STOKES)
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
MR
D PERRY
appeared on behalf of the Attorney-General
MR
J FISHER
appeared on behalf of the Respondent
- - - - - - - - - - - -
JUDGMENT
(
As
approved by the Court
)
- - - - - - - - - - - -
Crown Copyright
Friday
2nd October 1998
THE
VICE PRESIDENT: The Attorney-General seeks the leave of the Court under
section 36 of the Criminal Justice Act 1988 to refer a sentence said to be
unduly lenient. We grant leave.
The offender is a 43 year old lady who, on 17th February 1998, pleaded
guilty to wounding with intent to do grievous bodily harm, contrary to section
18 of the Offences Against the Person Act 1861. She was sentenced by Mr
Recorder AT Smith QC, sitting at Birmingham Crown Court, to 2 years'
imprisonment suspended for 2 years, together with a 2 year supervision order.
In outline the circumstances were these. On 2nd February 1997 the
offender, who was a traveller, then aged 42, attacked her 22 year old
daughter-in-law with a Stanley knife. She caused injuries requiring 52
stitches and permanent scarring to the victim's arm and back and behind her
right ear. The victim at the time was 7 months' pregnant.
In a little more detail, the facts were these. A day or two before the
attack, there was a dispute in a public house in Highgate, Birmingham,
involving members of the Stokes family. It was the consequence of a family
feud of some history. A bare fist fight was arranged to take place on a piece
of open ground in Spark Hill at midday on 2nd February. The family there
gathered. The fight, which was between the offender's son and her nephew, took
place. While it was in progress the offender spoke to an Asian man, who then
attacked the husband of the ultimate victim. The offender then approached the
victim Anne Stokes and, as we have said, she was 7 months' pregnant, and the
offender wielded upon her a Stanley knife. She was helped in the attack by her
son and husband. The victim tried to run away but was knocked to the ground by
the offender's husband. The offender made off from the scene with her son and
husband.
The victim was taken to hospital. It was found that the cut behind her
right ear, to which we have referred, required 24 stitches. She had two large
cuts to the top left of her back, requiring 14 and 10 stitches respectively.
She had a small cut on her upper left arm, requiring four stitches and, it
appears from the photographs before the Court, there was additionally a small
cut of no great consequence to her left cheek. It is apparent that the knife
had been used at least four times.
The offender was arrested at home on 19th February 1997. She explained in
interview that there had been a family feud in progress for 2 or 3 years. She
had attended the arranged fist fight because she was concerned that her son
was to fight an older man. She admitted, in interview, that she had gone
beserk after Ann Stokes had grinned at her, but she claimed she could not
recall using the knife.
Her husband and son were also arrested on the same day. They, in
interview, denied any involvement in the offence. In circumstances to which in
a moment we shall return, proceedings against them were discontinued at the
Crown Court on the occasion on which the offender pleaded guilty. On that
occasion, a number of material witnesses in relation to the father and son had
failed to attend court. The offender pleaded guilty on the basis that she
alone was responsible for causing the injuries.
On behalf of the Attorney-General, Mr Perry submits that there are the
following aggravating features present. First, the use of a Stanley knife;
secondly, the extent and seriousness of the injuries, and thirdly, the advanced
state of pregnancy of the victim.
He draws attention to the following mitigating features. First, that the
offender is previously of good character and is the mother of nine children,
and has a medical history of depression spanning some 20 years. She also
suffers from a condition of wasting muscle tissue. There was before the learned
judge, and is before this Court, a psychiatric report indicating that, at the
time of the offence, she was suffering from mild depression, probably by reason
of the family feud background, but that condition did not affect her intention
when using the knife.
The submission is made on behalf of the Attorney-General that the sentence
passed by the learned Recorder failed adequately to reflect the gravity of the
offence and public concern about offences of this nature.
The Court was referred to a number of authorities, but it is only
necessary to refer to one of those,
Attorney-General's
Reference No 47 of 1994
(R v Smith) 16 Cr App R(S) 865, when a division of this Court, presided over by
the then Lord Chief Justice, Lord Taylor, increased a sentence of
two-and-a-half years to 4 years, following a trial in which the offender was
convicted of a like offence. In the course of giving the judgment of the
Court, the learned Lord Chief Justice referred to the general level of sentence
appropriate for wounding with intent as being of the order of 4 years and
upwards.
The circumstances in which the offender came to plead guilty, as we have
already indicated, are further set out in a document agreed by counsel, now and
previously in the case, which is to this effect. Discussions took place between
counsel for the Crown and the three defendants then charged in the Recorder's
room. Despite what this Court has repeatedly said, those discussions were not
recorded on tape or by a shorthand writer. That is lamentable.
The note from counsel describes how the purpose of the discussions, so far
as counsel were concerned, was to indicate to the Recorder that discussions
were taking place between counsel, that prosecution witnesses had not attended,
and that the prosecution were giving consideration to what would be a proper
way in which to proceed. There then follows this:
"To
our astonishment, before any of us could say very much, the Recorder indicated
that he thought that Mrs Stokes needed the help and support of the Probation
service, and asked whether or not this would be forthcoming.
He
very plainly indicated that he was not likely to impose an immediate custodial
sentence on Mrs Stokes."
In the light of that observation Mrs Stokes counsel:
"...told
her in general terms, what had been said by the Recorder. She then pleaded
guilty to wounding with intent and the case against the other two defendants
was not proceeded with."
None
of that, as we have said, formed the subject of any contemporaneous note and it
is, in our judgment, highly regrettable that those discussions took place in
that way, unrecorded.
Against that background, on behalf of the offender, Mr Fisher submits
that, the offender having pleaded guilty following the indication of a
non-custodial sentence by the Recorder, it is not open to this Court on an
Attorney-General's Reference to interfere with the sentence which was passed.
In support of that submission, he referred us to a number of authorities,
in particular,
R
v Keily
11 Cr App R (S) 273 and
R
v Jackson
[1996] 2 Cr App R(S) 175, which undoubtedly establish the principle that, if a
trial judge has given an indication of a lenient sentence, which results in a
defendant pleading guilty, because an expectation of leniency is thereby raised
in the mind of the defendant, this Court, on an appeal to it by a defendant who
has been sentenced more harshly, is bound to give effect to the indication
given by the trial judge.
Mr Fisher submits that that approach applies equally where a reference is
sought to be made by the Attorney-General under the Criminal Justice Act 1988.
He accepts that there stands in the way of the success of that submission, a
decision of this Court in
Attorney-General's
Reference No 40 of 1996
(R v Robinson) [1997] 1 Cr App R(S) 357. In that case, the judgment of the
Court was given by the Lord Chief Justice, Lord Bingham of Cornhill. It was a
case in which an indication of a 5 year sentence had been given by the
sentencing judge, following which the defendant pleaded guilty. It was
accepted before that court, by counsel then appearing for the offender, that
the circumstances were such as not to prevent this Court from interfering on an
Attorney-General's Reference, but the way in which the Court exercised its
discretion on such a Reference should be influenced by that which had occurred
below.
In the course of giving judgment, at page 362, Lord Bingham said by
reference to the offender's counsel:
"...he
submits that where such an indication is given, the Court should be very slow
to increase a sentence. But he accepts that the Court retains a discretion; he
urges that it is a discretion to be exercised on all grounds relevant in
considering the fairness to the individual defendant and also the wider public
interest.
Whilst
the Court wishes to make plain its extreme distaste for the procedure which was
followed in this case, we consider that this is an appropriate basis upon which
to approach the matter where such an incident has, for whatever reason,
occurred."
Mr Fisher's bold submission to this Court is that that observation by the
Lord Chief Justice and the decision of the Court in that case, whereby the
offender's sentence was increased above the 5 years imposed by the sentencing
judge, was
per
incuriam
.
He makes that submission because the authorities establishing the principle,
to which we have earlier referred, were not cited to the court, and because in
a commentary upon
Robinson,
to be found in 1997 Criminal Law Review, at page 70, Dr David Thomas QC
advances argument in support of the submission which Mr Fisher now makes. We
reject Mr Fisher's submission.
There is, as it seems to us, no warrant either in the terms of the 1988
Criminal Justice Act or in principle why this Court, on an Attorney-General's
Reference, must be bound by an indication as to leniency given by the
sentencing judge, even where that is given prior to the entering of a plea of
guilty.
There may, of course, be a variety of factors which, in any particular
case, induce a particular defendant to plead guilty.
We accept that, in the present case, the indication in relation to
sentence given by the Recorder was a factor. We have little doubt that there
were other factors, including the prosecution's decision not to proceed
against the offender's husband and son.
Be that as it may, if it were the position that a legitimate expectation
of a lenient sentence prior to a plea of guilty, was a sufficient reason for
this Court not to exercise its powers under section 36 of the Criminal Justice
Act 1988, the whole purpose of those powers would, as it seems to us, be set at
naught. Anyone who pleads guilty to an offence which is, by the terms of that
Act, susceptible to an Attorney-General's Reference must, as it seems to us, be
taken to do so in recognition of the risk that, if a lenient sentence is
passed, that may give rise to an Attorney General's Reference to this Court, on
which this Court may increase the sentence passed by the sentencing judge. It
follows that we do not accept that the case of
Robinson
was decided
per
incuriam
.
So far as the other aspects of this matter are concerned, Mr Fisher
accepts that, in the ordinary way, a sentence of three or four years'
imprisonment could have been expected for an offence of this gravity. But he
submits that the personal circumstances of this offender, to which we have
already briefly referred, are such as to give rise to exceptional circumstances
which would properly justify the suspension of the sentence which might
otherwise be merited.
That submission we are unable to accept. It does not seem to us that this
was a case in which it could possibly be said that there were exceptional
circumstances justifying suspension. In any event, for the reasons already
given, the sentence of imprisonment which would have been appropriate exceeds
that which could have been suspended.
That being so, taking into account all the circumstances of this case,
including the double jeopardy which is a feature of all references of this
kind, and including that which the learned Recorder said, unwisely, in the
circumstances to which we have earlier referred, we are of the view, first,
that the sentence passed by him was unduly lenient, to an extent to which this
Court should interfere, and secondly, that the sentence which is now
appropriate on this offender is one of 2 years' imprisonment. That sentence
will run from the date on which she surrenders to custody. We are told that
she is presently in the Republic of Ireland. We order that she surrender to
custody within 7 days.
MR
FISHER: May I mention, I would like to consider the question of seeking your
Lordships' certificate for referring this matter to the House of Lords on the
point of law issue. If I may do so I would like to think about it.
THE
VICE PRESIDENT: Do not think about it so long that this Court is no longer
presently constituted as it is.
MR
FISHER: I understand I can either do it orally now or submit it in writing in
14 days.
THE
VICE PRESIDENT: Without expressing a view as to whether a certificate might or
might not be granted, if on a written submission a certificate was refused, you
have the right to make oral submissions. All I am saying is, if, you want to
make any oral submissions, you must do so while this Court is presently
constituted which is up to -- we are certainly sitting together for 2 more
weeks.
© 1998 Crown Copyright