England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2005] EWCA Crim 2205

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		Neutral Citation Number: [2005] EWCA Crim 2205
		No: 05/1873/A1

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2

Wednesday, 3 August 2005

B e f o r e :

LORD JUSTICE LATHAM
MR JUSTICE GIBBS
THE COMMON SERJEANT OF LONDON
HIS HONOUR JUDGE BARKER QC
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	REFERENCE BY THE ATTORNEY GENERAL UNDER
	S.36 CRIMINAL JUSTICE ACT 1988
	ATTORNEY-GENERAL's REFERENCE NO 36 OF 2005
	(NATHAN HEATH)

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MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL
MR S BRUNTON appeared on behalf of the OFFENDER
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HTML VERSION OF JUDGMENT
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LORD JUSTICE LATHAM: On 10th March 2005, at the Truro Crown Court, this offender, who is 26 years of age, was sentenced to three years' imprisonment for an offence of causing grievous bodily harm with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Persons Act 1861. The Attorney General seeks leave, pursuant to section 36 of the Criminal Justice Act 1988, to refer to this court that sentence on the basis that it is unduly lenient. We give him leave.

The facts of the offence were as follows. The victim, who was a 30-year-old car hood fitter living at the time in London, had gone to stay with his parents in Cornwall in June 2004. On Tuesday 15th June he went with a friend, Miss Collins, to a public house, the Plough Inn at Camborne, where there was a karioke entertainment that evening. At the time the victim was a keen and successful amateur singer. They enjoyed the evening in the public house, apart from an incident, which was the result of two sisters, Hayley and Bernadette Sara, who had been playing at the pool table, taking offence at the way in which they thought Miss Collins was looking at them. One of them demanded to know "what she was staring at", a not uncommon precursor to unhappy incidents of violence. The victim, and Miss Collins, then felt somewhat uncomfortable; and eventually, at 11.15, about the same time that the last orders were called, they decided to leave. As they walked towards their car, a group of girls including the two sisters to whom we have referred also left the public house. They ran forward to catch up with the victim and Miss Collins and again asked if Miss Collins "had a problem". One of the sisters then positioned herself by the driver's door of the car, which made it difficult for the victim to get in. He asked her to "leave it", they were going. But the young women became increasingly belligerent. One of them made a call on her mobile telephone; one pushed and slapped at Miss Collins. One of the sisters, Hayley Sara, then falsely claimed that the victim had thumped her on the nose. The victim and Miss Collins did manage to get into the car, but they were unable to drive away immediately. By the time the victim was able to start to leave the car park, the offender, who was Hayley Sara's boyfriend, arrived. He had been apparently at the Saras' home when he had been telephoned and informed that an incident had occurred which had resulted in some sort of injury to Hayley, his girlfriend. At some point he had managed to arm himself with an iron bar some 2 foot long and some 2 inches thick. Before the victim and Miss Collins had been able to drive away, he ran towards the car, struck the windscreen of the car at least twice with the bar, smashing it, then the driver's window, smashing that, and then proceeded to rain blows with this bar at the head, face and upper body of the victim. The attack was, according to Miss Collins, frenzied. She, as may be imagined, was terrified, crying and screaming. The victim was doing his best to try to drive away. At the time he was clearly in fear of his life, not surprisingly, because this was an attack with what was capable of being a lethal weapon, in circumstances where the blows were being rained and aimed at the victim's head. He managed to drive the car some distance, but collapsed. Fortunately two passersby came to his and Miss Collins' assistance, and an ambulance was called.

He was taken to hospital. It was apparent that he had suffered extremely serious injuries. He had fractures to his scalp, the right side of his face and the voice box. A small blood clot developed in the brain, but fortunately medical intervention ensured there was no consequence from that.

The offender was arrested on 22nd June. He denied having been present.

When interviewed he claimed that he had been at home and then had received a telephone call saying that his girlfriend had been beaten up by "loads of blokes". He went to the car park. He described to the police that he had seen his girlfriend surrounded by loads of people and that she had suffered injuries which were visible to him. He went to the victim's car. By then according to him, the driver was already covered in blood. He then ran away. In other words he denied that he was in any sense involved in any attack on the victim.

Ultimately, he was charged. He was identified by the victim and Miss Collins as the person who had inflicted the blows which had resulted in the victim's injuries.

The effect on the victim has been considerable. He has suffered from poor voice control and has had great trouble eating and swallowing. He had a pre-existing diabetic condition which was aggravated by the injuries. He has had continuing trouble with both his head injuries and in particular the injuries to his vocal cords. He is no longer able to sing. There has been a serious effect on his quality of life. He has lost his employment in London. He now lives with his parents in Cornwall. He continues to undergo medical treatment and voice therapy, and suffers pain to the fracture sites. There is a real possibility that the disabilities which he suffers will be permanent.

It follows that, as the Attorney General has submitted, this was a serious assault with a weapon which was capable of causing, and did cause, severe injuries. It was a persistent and indeed frenzied attack. As far as the victim was concerned, it was wholly unprovoked. Those responsible for having persuaded the offender, if that be the basis upon which he became involved, that they had been subject to some sort of attack from the victim, must bear a heavy responsibility for what happened. But the fact remains that there was and could not have been any excuse for this attack, whatever the offender believed. Serious injury was inevitable. In the circumstances a substantial sentence of imprisonment was necessary.

On the other hand the offender is a man who has no previous convictions for violence; and that undoubtedly weighed heavily with the Recorder in determining what was the appropriate level of sentence. It is also to the offender's credit that he ultimately, but at a very late stage, pleaded guilty to the offence. The fact, however, remains, that this sort of offence can be expected to carry with it a sentence of at least six years' imprisonment bearing in mind all the circumstances of this case. It follows that the Recorder fell into error in concluding that it could justify a sentence of three years' imprisonment.

Bearing in mind the element of double jeopardy and bearing in mind the mitigating features which in particular in this case are the fact that this young man has no previous convictions for violence, we consider that the justice of the case is reflected in a sentence today of five years' imprisonment. That is the sentence we substitute for that which the Recorder imposed.