England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 2nd November 2004

1. Lord Justice Potter: This is an application by HM Attorney General for leave to refer to this Court a sentence which he regards as unduly lenient pursuant to section 36 of the Criminal Justice Act 1988. After careful consideration, as to which we make certain remarks later, we consider leave appropriate.
2. The offender's name is Martin Thomas Keenan. His date of birth is 12th November 1982. He is therefore 21 years of age.
3. On 30th March 2004 he pleaded guilty to one count of robbery (count 1), one of unlawfully inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 (count 4), and one of assault occasioning actual bodily harm contrary to section 47 of that Act (count 3). On 6th July 2004 he was sentenced to a total of three years' imprisonment as follows: count 1, robbery, three years; count 4, inflicting grievous bodily harm, two years concurrent; count 3, assault occasioning actual bodily harm, two years concurrent. The sentencing judge was Mr Recorder Bromley-Davenport QC sitting at Minshull Street Crown Court in Manchester.
4. In summary the offences relate to an incident on 11th November 2003 when the offender, aided by another man, attacked a group of strangers, two men and a young woman, as they were walking home at night across a park in Stockport. The offender punched one of the victims in the face, shouted that he had a gun, and then beat one of the others with a weapon, either a metal bar or snooker cue, such that the victim suffered permanent injury to one of his hands whilst defending his head. The offender took from the second victim property, including a mobile telephone and gold jewellery.
5. In more detail, the facts of the offences were as follows. On the evening of 11th November 2004, Louis Godfrey and his girlfriend, Carolyn Abbot, visited the Replay Snooker Club in Wood Street, Stockport. With them was a friend, Ian Minshull. The group spent a couple of hours playing snooker. Each drank about two drinks. At about 11.30 p.m. the three left for Miss Abbott's house. Their route took them through Hollywood Park. As they approached the park they heard a woman shouting from a nearby block of flats. The gist of the words was "Come home, Keenan [ie. the name of the appellant]. You're going to get into trouble". The offender was sitting on the swings in the park and he was heard to shout back, "Don't worry. I am not going back to prison". Miss Abbott described the conversation as sounding "like they were giggling and sort of flirting with each other".
6. As the group got about halfway across the park they saw the offender again. He was standing talking with another man. The offender approached the victims. He saw that two were carrying their snooker cue cases and asked where they had been. Louis Godfrey replied to the offender and then went to walk past. The offender said, "You're a cheeky bastard", and punched Mr Godfrey in the face. That was the subject of count 3.
7. The blow caused Mr Godfrey to stagger and almost to fall. He felt blood coming from the area of his eye. He told Miss Abbot to run and call the police. As she ran, the offender walked to Mr Godfrey and said "Have you ever seen a gun?" He reached to the back of his trousers and pulled out a dark object, about 7 inches long, which he held above his head. Mr Godfrey grabbed his cue case and ran off.
8. The offender then turned to Ian Minshull and struck him on the head, disorientating him and knocking off his glasses. The offender demanded Mr Minshull's mobile telephone and any money he had. As Mr Minshull was complying, the offender continued to shout that he had a gun and threatened to shoot the victim. The man who had been talking to the offender earlier then approached and Mr Minshull was struck in the back with a hard object and knocked to the ground. As he lay face down in the ground he was assaulted by the offender and the other man. He was kicked and beaten as he lay on the ground. He tried to protect his head with his hands and was struck repeatedly across the hands with what he believed to be a metal bar. Mr Minshull was able to hear a metallic noise as the object struck the ground. That attack was the subject of count 4.
9. Both assailants continued to demand Mr Minshull's property. They searched his pockets. One of the assailants demanded the gold chain that Mr Minshull was wearing around his neck. They threatened to "cave in" Mr Minshull's head with the weapon while Mr Minshull was unable to remove the chain himself because of the injuries to his hands. The second assailant then shouted to the offender to leave Mr Minshull and that he had had enough. He pulled the victim away from the offender. The two assailants made off, taking Mr Minshull's property with them, consisting of money, the chain and a mobile phone.
10. The police were called and Mr Minshull was taken to hospital. On examination in the early hours of the morning it was noted that he had bruising to the centre of his forehead, had had a nose bleed, but had no other signs of concussion. Both his hands, which he had used to protect his head, were described as "swollen and exquisitely tender". He was unable to move his fingers. He had soft tissue injury to the right side of his rib cage. X-ray examination revealed displaced fractures to the second and third metacarpal shafts in his left hand. The damage to his right hand was limited to soft tissue injury.
11. He was seen by an orthopaedic surgeon the following day and had to have an operation carried out under general anaesthetic to repair his left hand which involved the insertion of wires to join the fractures. These wires were removed on 17th December 2003 and he was advised to begin to try and mobilise his fingers. By 7th January he still had limited movement and was referred for physiotherapy. In total he attended the fracture clinic on five occasions and had 18 sessions of physiotherapy. By the end of April 2004 he still had decreased range of movement in his index and middle fingers and difficulty in gripping. The physiotherapist predicted some minor permanent disability in active grip and his left hand is permanently somewhat deformed.
12. Each of the victims made a victim impact statement. In Mr Minshull's case, he made a number of statements as his treatment progressed. These reveal that he is left handed. At the time of the assault he was taking a degree in nursing. As a result of the damage to his hand he was unable to continue with the course. In March 2004 it was not clear whether he would regain sufficient use of his hand to be able to become a nurse. Mr Minshull is a diabetic and this delayed the physical healing process. He also suffered considerable psychological damage as a result of the attack. He had difficulty in sleeping and felt vulnerable both inside and outside his home, being frightened to go out and needing counselling.
13. Louis Godfrey, on the other hand, did not have any lasting physical injury, but he said that, since the incident, he too felt victimised. He could not walk to the shops without watching everyone on the street. He would wake at the slightest noise in the night and worried about his girlfriend being out alone as he felt the streets were no longer safe.
14. Carolyn Abbot described similar feelings of fear and helplessness and said that the incident had changed her whole perception of people in the area.
15. The offender was identified from CCTV coverage of the nearby block of flats. He was arrested on 20th September 2003. He made no comment to questions put to him in interview. He was subsequently identified by Mr Minshull and, following that identification, he provided a written statement to the police in which he accepted that he had been involved in "an incident" in Hollywood Park. In that statement he denied that he had a weapon. He admitted that he had punched the first male, but said the second male then approached him brandishing a pool cue, which he had grabbed, and he then hit the male with it on more than one occasion. He denied asking for or taking any property and denied making any reference to a gun or shooting anyone.
16. He was charged with robbing Ian Minshull, possessing an imitation firearm at the time of committing an offence contrary to section 17(2) of the Firearms Act and assaulting Louis Godfrey occasioning him actual bodily harm. At the plea and directions hearing on 30th March 2004 he pleaded guilty to robbery, unlawful wounding and assault occasioning actual bodily harm. The firearms offence was not proceeded with.
17. The offences took place on the eve of the offender's 21st birthday. He had already seven previous convictions for a total of 11 offences. His first court appearance was at the age of 16, when he pleaded guilty to assault occasioning actual bodily harm and was made the subject of an attendance centre order. The majority of his subsequent court appearances were for dishonesty, until August 2001 when he pleaded guilty to three offences of robbery and three of theft and was sentenced to two years' detention. He had been released from that sentence on 17th June 2002 and remained on licence until 27th September 2003. Thus the instant offences occurred less than two months after the expiry of his licence, which no doubt accounts for the shouted exchange from the block of flats which the victims had heard shortly before they were attacked.
18. There was both a pre-sentence report and a psychiatric report available to the sentencing judge. The pre-sentence report observed that the offender traced his violent behaviour back to an incident at the age of 15 when he was wrongly accused of having sexually assaulted an 11 year old boy. The accusation became known in the local community and caused him hardship. Although he was able to pass six GCSE exams shortly afterwards, he said it had been this incident which had caused him to start abusing alcohol and drugs and led to the commission of offences. On 11th November, on the night in question, he had been disappointed to hear that his mother was not coming to help him celebrate his birthday and he had started drinking, until, by the time of the assault, he was unable to control his feelings or behaviour.
19. The probation officer accepted in the report that because of the seriousness of the offences and the ongoing risk to the public presented by the offender, which the officer assessed as high, a custodial sentence was the only realistic disposal. The offender told the probation officer that he agreed with the majority of the prosecution case, but maintained that he had not taken a weapon with him and had not planned to commit an offence. He maintained that he assaulted Mr Minshull using the victim's own snooker cue. The offender had expressed remorse to the officer and said he was deeply ashamed of what had he had done.
20. There was a psychiatric report available which had been prepared for the hearing by Dr Snowdon, a consultant forensic psychiatrist. This also referred to the offender identifying the cause of his offending to the incident when he was 15. Dr Snowdon found no evidence of any symptoms suggesting any serious illness. The offender was not clinically depressed or anxious, and there were no symptoms of psychotic illness. He was cognitively intact. He was possessed of six GCSE passes and his intelligence was assessed as being in the moderate range.
21. Dr Snowdon identified his excessive drinking and use of prescription drugs and cannabis as encouraging his aggressive behaviour. He said that, although the offender appeared motivated to control his behaviour at the time of interview, it was difficult to judge whether he would maintain that motivation once he was out of his current controlled situation. Dr Snowdon noted that there was a risk of impulsive behaviour if he continued to drink excessive amounts of alcohol.
22. A letter from the offender expressing remorse and a note from the offender's mother were handed to the judge. We have seen them. They represented eloquent pleas for leniency and a recognition of the offender's drink problem. They emphasised his youth and his intention to reform. The mother emphasised his good qualities and urged as short a sentence as possible.
23. In passing sentence, and having referred to the psychiatric report dealing with the offender's attribution of his violence to a disturbed youth and, in particular, the incident when he was 15, the judge said this:

"... it is just no good burying yourself in the past. You are 21 now, you are a man, you have got to look to the future, otherwise you are going to have a miserable life spending your time going in and out of prison. If that is what you want, that is what you can have, it is up to you. You are a young man with considerable abilities and, if you channel your activities to make use of those abilities in the future, there is no reason at all why you should appear before the courts again, but if you do, future courts will have no mercy on.

As I have said, I have read and listened very carefully to all that has been written and said about you and, as a consequence of that and your plea of guilty, I have been able to significantly reduce the overall sentence that I am going to impose upon you. I had thought that a sentence, with your record, of four to five years would be appropriate in this case, but having listened to the mitigation, I have reduced that, as I say, very substantially and the total sentence that I pass upon you is one of three years' imprisonment. It will be made up as follows; for the dreadful robbery offence, accompanied as it was by awful violence to Mr Minshull, you will go to prison for three years, for the assault occasioning actual bodily harm to Mr Godfrey, you will go to prison for two years and for the related unlawful infliction of grievous bodily harm to Mr Minshull, you will also go to prison for two years, making a total of three years in all."

24. It is submitted for the Attorney General that the sentence of three years in total was unduly lenient in that it failed to mark the gravity of the offences, the aggravating features present, the need for deterrence and public concern about the prevalence of robberies at night in public places. These were indeed serious offences, the following aggravating features being present: (a) There was use of excessive and gratuitous violence causing some permanent injury to one of Mr Minshull's hands: indeed it was only by using his hand to protect himself that he avoided what might have been serious head injuries; (b) the use of a weapon and threats made to the victim that the offender had a gun; (c) there were in fact several offences and more than one victim; (d) there were two offenders acting together; (e) there was some evidence of premeditation; (f) in one offence a mobile telephone was targeted; (g) the prevalence of offences of robbery of this nature, that is to say at night in public places, such as the park in this case; and (h) the offender had previous convictions for similar offences.
25. The mitigation features which were present were the pleas of guilty, the age of the offender and his apparently genuinely expressed remorse and motivation for change.
26. In relation to the appropriate sentence to be passed we have been referred to Attorney General's References Nos 4 and 7 of 2002 [2002] 2 Cr App R(S) EWCA Crim 127, and Attorney General's References Nos 150 and 151 of 2002 [2003] 2 Cr App R(S) 111, and a short Lawtel text produced at the hearing before us relating to Attorney General's Reference No 98 of 2004 (heard on 28th October 2004).
27. In the first of those cases mentioned, Lord Woolf reviewed the range of sentencing appropriate to what he described, at page 347, paragraph 1, as:

"Robberies in public places [which] involve the theft of mobile telephones and small amounts of money. They are offences of a particularly worrying nature. They are worrying because of the effect which they have on the public, the effect which they have on the victims in particular, and on the fact that they undermine the criminal justice system. Frequently they involve offences against victims who are either young in age, as is the position with these three applications, or elderly people -- people in both categories who are vulnerable because of their age."

28. Having reviewed the high figures for the type of crime to which he referred, the Lord Chief Justice said at page 348, paragraphs 4 to 7:

"Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences. Those who do so must understand that they will be punished severely. Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when a judge comes to decide on length of sentence.

In his submissions on behalf of the Attorney General, Mr Pownall said that the bracket of sentencing which the authorities reveal for offenders of the sort we have been describing is 18 months to five years. We will look shortly at some of the authorities to which we were referred. We agree with what Mr Pownall said, subject to this. If the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the five year upper limit may not be appropriate.

Mr Pownall also indicated that the authorities suggest that the upper limit is three years where no weapon is used. Again we agree, subject to the qualifications which we have already expressed in relation to the five year figure.

A factor which, in our judgment, is of importance is whether a team of offenders is involved. The fact that there are a number of offenders will make the offence more intimidating."

29. Having considered the cases dealt with in that Reference, and in particular that of Lobban, and having refer to the observations of Kay LJ in Attorney General's Reference Nos 150 and 151 of 2002, in which in a not dissimilar, though, we consider, less serious case, the Court indicated as appropriate a sentence of four years' detention on a guilty plea, we consider that, absent exceptional mitigating circumstances, the appropriate sentence would have been one of five years. We are confirmed in this view by reference to the shortly reported case produced to us at this hearing, when, in a broadly comparable position, the Court expressed the view that a sentence of at least five years' detention was appropriate in the circumstances then before the Court.
30. Five years was, of course, the upper end of the bracket referred to by the judge when passing sentence on this offender. We think that higher figure appropriate because of the offender's criminal record and the degree of violence used with a weapon, whether it was metal bar or a snooker cue. The only question, as it seems to us, is whether the mitigating circumstances advanced justified a reduction to the three years actually imposed. It was undoubtedly a lenient sentence, but was it unduly lenient? We consider that it was in the light of the features which existed. We accept that the appellant was genuinely remorseful. Tragically also, he clearly is more intelligent and has more potential than the usual run of defendant encountered in cases of this type. However, there was no excuse for the serious attack which has marked the lives of those affected and the psychiatric report was by no means optimistic as to the future so far as this offender was concerned. There was no positive regime for future change advanced, available, or envisaged as necessarily likely to put him on an improved path.
31. That said, however, we do not propose to effect a substantial increase in the sentence. The judge plainly considered that, on the material before him, there was a good deal of mitigation entitling a sentence below the bracket to which he referred. In our view, he was entitled to hesitate (as plainly he did) before making this particular offender, at 21, a long term prisoner by imposing a sentence of four years. We have before us a prison report which does indeed give some grounds for optimism in the future by reason of his behaviour in prison. In addition, there is the usual consideration of "double jeopardy" to be taken into account.
32. We therefore propose to quash the sentence of three years' imprisonment upon count 1 and to substitute a sentence of three years and nine months' imprisonment, leaving the sentences upon the other counts intact.
33. We only pause to observe, in the light of that narrow increase in sentence, that we have considered with some care whether this was a case suitable for the grant of leave. It is a case where the real dispute is whether the judge, while recognising the appropriate starting point, and imposing a substantial custodial sentence, deducted too much by way of mitigation given the particular facts of the case. We do not wish this case to give any encouragement to the making of future references in the category we have just described, unless there is some obvious and substantial departure from good sentencing practice, some peculiar feature of local outrage, or some other special consideration which makes the case appropriate for reference.