England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2004] EWCA Crim 2113

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		Neutral Citation Number: [2004] EWCA Crim 2113
		No: 2004/1464/A3

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2

Friday, 16 July 2004

B e f o r e :

LORD JUSTICE LATHAM
MR JUSTICE GRAY
SIR JOHN ALLIOTT
____________________

	REFERENCE BY THE ATTORNEY GENERAL UNDER
	S.36 CRIMINAL JUSTICE ACT 1988
	ATTORNEY-GENERAL's REFERENCE NO 29 OF 2004

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____________________

MR M HILL appeared on behalf of the ATTORNEY GENERAL
MISS D BREEN-LAWTON appeared on behalf of the OFFENDER
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HTML VERSION OF JUDGMENT
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LORD JUSTICE LATHAM: In this matter the Attorney General seeks to refer to this court a sentence imposed on the offender, who is 25 years of age, on 13th February 2004. On that date the offender pleaded guilty to wounding with intent contrary to section 18 of the Offences Against the Person Act, common assault contrary to section 39 of the Criminal Justice Act and burglary. The Recorder imposed a sentence of 18 months' imprisonment for wounding with intent, 18 months for the burglary and six months for the common assault and ordered those sentences to be served consecutively, making a total of three-and-a-half years' imprisonment.

The offences to which the offender pleaded guilty were as follows. The first offence in point of time was an offence of burglary which was committed on 20th March 2003 when the offender, together with another man, entered a temporarily unoccupied house in Leeds. Having broken the door and disabled the security alarm they made off with electrical goods to the value of £1,350. The offender was arrested for that offence. The offender's blood was found on the remote control for the television set which had been discarded in the garden. He was interviewed and denied the burglary and was then released on bail to await trial.

Whilst he was on bail he was, on 14th August 2003, determined to obtain, as he thought, satisfaction from a girl called Donna Abbott in relation to whom he had a grievance. He drove to her address. She was at the time in the garden and he got out of his car and remonstrated with her for, as he said, stealing some drugs. She was terrified of the offender and pleaded with him not to hurt her, but he snatched her cigarettes and then threw her cigarette lighter at her striking her on the head and causing a lump. That was the basis of the charge of common assault.

Mr Sellers, who was her neighbour, then came to her assistance. He managed to distract the offender sufficiently long for Miss Abbott to get back into her house. The offender then sought to follow her and kicked at the door. He picked up a shovel and turned his attention on Mr Sellers, swinging the shovel at him. Mr Sellers managed to avoid any injury and then they grappled, falling over Miss Abbott's garden wall in the process. Mr Sellers then managed to get the shovel off the offender and chased him from the premises.

The offender then went to a house on the other side of the road, shouting abuse and threats. Subsequently he returned to the garden fence, putting his hand out to Mr Sellers as if in a gesture of shaking his hand. Mr Sellers then went to accept the handshake and when he was within reach the offender took a knife from his pocket and slashed him across the face. The result was a cut to the septum of Mr Sellers' nose and a cut to his left nostril requiring internal and external stitches and a cut under the left eye which required a number of stitches.

When interviewed the offender was not prepared to admit the offence and indeed did not enter a plea until a late stage, albeit before the case was listed so that it was not a plea on the day of trial. At the trial he entered a basis of plea in which he asserted that he had gone to Miss Abbott's home because she had stolen from him, but he admitted striking her with the cigarette lighter and slashing Mr Sellers' face in anger.

The offender had a number of previous convictions both for dishonesty and violence, but in particular he had been convicted on 27th April 2000 of two offences of causing grievous bodily harm contrary to section 20 of the Offences Against the Persons Act in respect of which he had been sentenced to a total of 30 months' imprisonment.

The judge in sentencing the offender indicated that he was doing so on the basis of plea that had been provided. He described the attack on Mr Sellers as being an attack in devious circumstances but accepted that he had expressed remorse by his plea of guilty. He noted that the offender had a long-term relationship with a girlfriend who was still standing by him, and that in sentencing the offender was taking into account the fact that he would necessarily be imposing consecutive sentences and accordingly had to have regard to the overall sentence which would result.

On behalf of the Attorney General, Mr Hill submits that the judge clearly fell into error. The attack was a sustained and unprovoked attack when taken together, that is what happened outside Miss Abbott's house when Mr Sellers was seeking to protect Miss Abbott, to the time when he was subsequently injured. There was the element of subterfuge which had enabled the offender to get within reach of Mr Sellers so that he could use the knife; and these were offences committed whilst on bail. He did not have the benefit of a good character and the plea was not a plea entered until late, albeit not at the last opportunity. On behalf of the Attorney General Mr Hill accepts that nonetheless there had to be credit for that plea of guilty and for the remorse which went with it. It was also the case that the knife had simply been used for the one blow -- in other words this was not a case of a sustained attack with that weapon. Nonetheless, Mr Hill submits that having regard to the decision of this court in Attorney General Reference No 18 of 2002 [2003] 1 Cr.App.R (S) 35, even where there is a plea of guilty, a sentence within the bracket of three to eight years is appropriate when a knife is used. He accordingly submits that the minimum sentence which could properly have been imposed by the judge in relation to the offence under section 18 was one of three years' imprisonment.

Miss Breen-Lawton on behalf of the offender accepts that the sentence for the section 18 offence is a lenient sentence taken in isolation, but that the judge was entitled to mitigate that sentence by reason of the fact that he was intending, as he did, to impose consecutive sentences in respect of each of the three counts in the indictment and that the totality of the sentence, that is three-and-a-half years' imprisonment, cannot of itself be said to be unduly lenient.

In our judgment the judge failed to give proper effect to the seriousness of the offence under section 18, even though the offences were, in our judgment, properly the subject of consecutive sentences. We do not consider that a sentence of less than three years' imprisonment in respect of the section 18 offence could properly have been imposed. We take the view that even taking into account double jeopardy, that remains the right sentence and therefore the one that we should substitute today. The consequence will be that the total sentence will be one of five years' imprisonment. Accordingly we give leave to refer and substitute the sentence accordingly.