England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		12th October 2006

1. Mr Justice David Clarke: This is an application for leave to appeal against sentence which was referred to the Full Court by the single judge. We grant leave.
2. The offences for which the appellant fell to be sentenced were all offences to which he had pleaded guilty at an early opportunity in the Crown Court at Reading. He pleaded guilty to two offences committed on 30th June 2005: having an offensive weapon (count 1), and causing grievous bodily harm with intent (count 2). He pleaded guilty to eight other offences, all committed on 1st September 2005, two months after the first. One offence of destroying property, three offences of affray, two of having a bladed article, one of assault occasioning actual bodily harm and one of having in his possession an offensive weapon.
3. On 3rd March 2006, before Her Honour Judge Zoe Smith, he was sentenced on count 2 of the first indictment, that is causing grievous bodily harm with intent, to imprisonment for public protection with a minimum term of five years less 182 days spent in custody on remand. No sentence was specified in respect of any of the other offences, but the judge did arrive at that specified minimum term by reference to the total determinate sentences which she said she would have imposed but for the imposition of the sentence of imprisonment for public protection. These notional sentences, in fact, totalled ten years, made up as follows. As regards the first indictment, six years' imprisonment for causing grievous bodily harm with intent and one year concurrent for having an offensive weapon. So far as the second indictment is concerned, a total of four years consecutive to the six years made up as follows: for destroying property, six months; for each count of affray, two years, concurrent with each other but consecutive to the other matters; for each offence of having an offensive weapon or a bladed article, one year concurrent; for assaulting a police officer causing actual bodily harm, 18 months' consecutive.
4. We have noted that at the conclusion of the sentencing process the appellant himself politely asked the judge for clarification. The judge at that point thought that the individual notional sentences amounted to nine years and that the minimum term would then be four and a half years. But when corrected and it was pointed out that the total came to ten years, she specified the minimum at five years.
5. We briefly summarise the events of the two evenings on which these offences were committed. On 30th June 2005 at about 11 at night the appellant and his former partner, Mrs Whomes, were walking towards their home address in Lower Early in Reading. They appeared to be drunk and to be having an altercation with one another. The appellant was shouting at Mrs Whomes loudly. As they passed a group of teenagers he ran towards them, shouting, "Get in that fucking house or I'll stab your guts out". He produced a large 5 inch bladed kitchen knife. The teenagers ran off. A young man called Jonathan Olney heard what had happened to those teenagers and he, followed by some of them, went to remonstrate with the appellant. The witnesses saw Mr Olney approach the appellant who was holding the knife. He was at first pushed away and then the appellant brought the knife in a diagonal movement across Mr Olney's face causing a horrific wound across his left cheek The appellant then quickly left the area.
6. Mr Olney required 40 stitches to his face. A victim impact statement described the effects on him. He felt he had to cover his face, he had lost confidence, he had suffered sleepless nights and it was painful for him to look in the mirror. We have seen photographs of that young man's injury and it was a very serious wound.
7. That is the first indictment. Moving to the second, on the evening of 1st September 2005 events took place in four different phases. Just before 7 o'clock the appellant was at his partner's, Mrs Whomes, home and in an argument he took her pet Chinchilla and threw it against a wall. She was distressed and fled the flat at which the appellant approached the neighbour's property where she had taken refuge and began shouting from outside. He threw the Chinchilla against the lounge window and posted the remains of it through the letter box. At which point it died the facts do not reveal. The police attended. The dead animal was recovered. The treatment of that animal is what leads to the count of destroying property contrary to the Criminal Damage Act.
8. An hour later, soon after 8 o'clock, two ladies were walking a dog. They were approached by the applicant. He asked them for a lift. They refused. He asked for money. When they declined that, he produced a knife with a 3 inch blade, threatened the two women, waving the weapon around and terrifying them. As a parting gesture he took a kick at the dog. Part of the incident was captured on CCTV. That gave rise to offences of affray and having a bladed article.
9. An hour later he went to a house where a children's party was taking place to celebrate a baby's first birthday in the garden. There were a number of children there. He approached the front gate of that property which was locked. He asked for a drink and was refused. He produced a knife and lunged towards the householder in a slashing movement towards his upper torso. When walking away, he used his knife to burst two of the balloons attached to the gate to mark the party. That gave rise to further offences of affray and having a bladed article.
10. Yet later the same evening he went to a relative's house in the Reading area and asked for a lift to Guildford. The relative denied his request. He became aggressive, shouting, swearing and threatening to kill the occupant in the property by setting fire to it. A neighbour heard the commotion and called the police. Two officers approached the appellant. One of them was holding a Tazer gun and asked him to show his hands. He refused and said, "Come any closer and you're going to get it". One of the officers, PC Flavin, grabbed him by his arms from behind at which the appellant stabbed the officer with a screwdriver in the shoulder and chest area. Fortunately, the officer was wearing a stab vest. The only injury sustained was a small cut to his thumb fending off the screwdriver. That phase gave rise to a further offence of affray, having an offensive weapon and assault occasioning actual bodily harm. At that point the appellant was arrested. He had been arrested following the earlier incidents, thus these offences of 1st September were committed when on bail.
11. The appellant had eight previous convictions for some 18 offences. They included offences of assaults on the police and other persons, criminal damage, driving with excess alcohol and disorderly behaviour.
12. He was a man to whom section 229(3) of the Act of 2003 applied, namely the presumption that there was a significant risk of further offences causing serious harm to members of the public, unless, in all the circumstances, it was unreasonable to make that assumption.
13. There were a pre-sentence report and a psychiatric report before the court. The pre-sentence report revealed an assessment of risk of reconviction and harm to the public as high. The appellant was aware that a custodial sentence was inevitable.
14. The psychiatric report indicated that he suffered a mild depressive illness, worsened by various stresses in his life, alcohol abuse and, indeed, incarceration. His offences could most easily be understood in the context of alcohol intoxication. The psychiatrist considered that his risk of violent reoffending was moderate.
15. In this particular case we have no doubt that the requirements for a sentence of imprisonment for public protection were amply met. That conclusion has not been challenged by Mr Blake appearing for him before us. It was, in our judgment, inevitable. This is just the sort of case for which an IPP sentence was designed and is best suited. Just precisely so that an assessment can be made of his continuing dangerousness, or otherwise, at a time when his possible release into the community is closer in time.
16. Two questions, however, arise on the appeal. One is a matter of technicality. The other is one of substance. The technical question is whether the judge acted properly in this case in passing a single sentence of imprisonment for public protection on count 2 of the first indictment and passing no sentence at all on the other counts. If this was not procedurally correct, how could the result, which she intended to achieve, properly have been correctly achieved?
17. A number of the offences on the second indictment were specified offences within section 224 of the Act, being listed in Schedule 15, but were not serious specified offences within section 224. These were the offences of affray and assault occasioning actual bodily harm. The other offences on both indictments, namely the simple form of criminal damage contrary to section 1(1) of the Criminal Damage Act 1971 and the offence of possessing an offensive weapon and having a bladed article, were not specified offences.
18. As we have indicated, the judge held that the appellant satisfied the criteria of dangerousness so as to qualify for an indeterminate sentence for public protection for the one serious specified offence. At that point, as regards the specified but not serious offences, it became mandatory for her to impose extended sentences pursuant to section 227 of the Act. This she neither did, nor was she reminded of the requirement to do so.
19. As regards the non-specified offences, again nothing was said. This was wrong because some conclusion must be marked in respect of every offence on the indictment to which a plea of guilty has been entered. These could properly be dealt with by declaring that they attracted no separate penalty.
20. It might be thought that having indicated that the determinate sentence for the one serious specified offence would have been six years' imprisonment, the judge should at that stage have set the minimum period under the IPP sentence at half of this figure, namely three years less time on remand, and only thereafter should have proceeded to consider the other indictment. But we are satisfied, having considered the complex provisions of the law here, that this is not necessary and certainly is not appropriate or helpful in a field in which the complications are so bewildering. But the minimum period can and should properly be set by reference to the totality of the offending with which the court on that occasion is dealing.
21. Mr Stanger, in a very helpful skeleton argument setting out the law in this area, indicates this rightly at paragraph 19 of his skeleton:

"Under section 82A(3)(a) [of the Powers of Criminal Courts (Sentencing) Act 2000] the sentencer is directed [when imposing a minimum period] to take into account 'the seriousness of the offence, or the combination of the offence and one or more offences associated with it'."

22. He goes on to point out that section 161 of the same Act states that:

"... 'an offence is associated with another if [and then among other things] the offender is convicted of it in the proceedings in which he is convicted of the other offence'."

23. In giving the judgment in the leading case of Lang [2005] EWCA Crim 2864, at paragraph 20 Rose LJ, Vice President, warned against consecutive extended sentences under section 227. It is all the more inappropriate to pass an extended sentence which is consecutive to an indeterminate sentence for public protection. In O'Brien [2006] EWCA Crim 1741 this court considered whether two IPP sentences can be ordered to run consecutively and concluded that they could not, even though there is no provision which positively prohibits it (paragraph 58 of the judgment). On the other hand, when imposing an IPP, the minimum term can and should properly be based on the totality of the offending (paragraph 69).
24. The court relied on the case of Haywood [2000] 2 Cr App R(S) 418, a mandatory life sentence case long before the Act of 2003, in which I, as the sentencing judge, had aggregated the notional determinate sentences for two separate offences for the purpose of setting a minimum term to be served, an approach which the Court of Appeal endorsed.
25. We would, therefore, uphold the judge's basic approach in setting the specified minimum period for the purposes of the IPP sentence by reference to the totality of the offending.
26. We move from the technicality to the merits of this appeal. The question of substance is whether, as counsel has contended in writing and orally before us, the five year specified minimum term was manifestly excessive. The appellant had pleaded guilty to all these counts at the plea and case management hearing. He was entitled to substantial discount for his pleas of guilty. The contention is that a ten year total determinate sentence after those early pleas is manifestly excessive. It might be argued that it is equivalent to, perhaps, 15 years had he been convicted after trial or trials. In arriving at this total by the use of consecutive sentencing the learned judge did not have regard to the totality of the sentences she would have imposed.
27. In our judgment, there is force in this criticism. Each individual sentence was, in our judgment, severe. Most, if not all of them, might not, standing alone, have been held manifestly too high. Six years for the offence of causing grievous bodily harm (in reality a case of wounding with intent) reflected the appalling wound across the left cheek which we see in the photographs, but on a plea of guilty was arguably manifestly excessive in itself. On the other hand, the notional sentence of 18 months for the offence against the police officer, who might well have suffered serious injury but for his stab vest, and particularly if committed when on bail, might properly have been longer. But overall we are persuaded that the totality was too great. From the exchanges to which we have already referred at the end of the sentencing exercise, it can be seen that the judge herself was unsure of the total of the individual notional sentences which she had indicated, which indicates that she cannot have stood back to look at the totality.
28. In our judgment, for the totality of this offending, after contested trials a total sentence of 12 years would have been a justified starting point, and after early pleas a total of some eight years. That is the basis for the decision of this court to reduce the minimum period from five years, less the time on remand, to one of four years, less the time on remand, which was 182 days. That, of course, remains a sentence of imprisonment for public protection pursuant to section 225 and it is imposed on count 2 of the first indictment, grievous bodily harm with intent.
29. This court will now impose concurrent sentences for the reminding counts on these two indictments. For the counts of affray and assault occasioning actual bodily harm, being specified but not serious offences, we impose extended sentences totalling three years pursuant to section 227, being an 18 month custodial term and an 18 month extension period. All of those will be concurrent between themselves and with the IPP sentence. For the remaining offences of having an offensive weapon and bladed articles and destroying a Chinchilla there will be no separate penalty. The appeal is allowed to that extent.