England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3 October 2007

1. LADY JUSTICE HALLETT: David Steel J will give the judgment of the court.
2. MR JUSTICE DAVID STEEL: Michael Challenger, the appellant, is aged 17. In January 2007, at the crown court at Plymouth (HHJ Gilbert), the appellant pleaded guilty to wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861, and the judge having sat as a district judge at the same time committed him for sentence on an offence for common assault. He was sentenced on 2 March, by the same judge, on the Section 18 offence to detention for public protection with a minimum term of five years, less 59 days and on the common assault charge, four months detention concurrent.
3. He appeals against that sentence by leave of the single judge. The circumstances are, by any standards, disturbing. A group of Scouts was visiting Plymouth in December 2006. The complainant was one of them. He was with some friends in the city when he was tripped up by a girl. She was with a group of youths, one of whom was the appellant. The Scouts tried to walk on but the appellant shouted at them, "What are you looking at? Don't walk away, I'll fight the oldest one." The complainant turned round and the appellant ran up to him and kneed him in the stomach saying, "What's your fucking problem?" He then punched the complainant in the face. The complainant sought to run away but the appellant followed him, caught up with him and produced a folding penknife with a blade, some three to four inches long. He stabbed the complainant twice: one in the abdomen and once in the chest and then ran off laughing.
4. When the police arrived on the scene they were told that the appellant was responsible and he was arrested a few hours later. He disposed of his bloodstained clothing and knife. In interview he made no comment.
5. The complainant had been rushed to hospital. The wound to his abdomen was minor, however the wound to his chest reached into the left external edge of his heart and the right ventricle had been penetrated. His heart was surrounded by a litre of blood. He was operated on immediately. It was common ground that without immediate surgery he would have died.
6. The common assault charge arose in fact from an incident during the course of the period when the appellant was on remand for this section 18 offence, when he chose to punch a teacher in a design and technology class a number of times.
7. The judge in sentencing the appellant reminded himself that he was 18, but had already established a significant criminal record. The judge remarked that the appellant had himself provoked the attack and having attacked the victim had walked off laughing. He repeated the fact that the complainant would have died had he not been promptly operated on. He accepted that the appellant had expressed remorse in a letter, but that the consequences for the complainant had been extremely serious.
8. He turned to the question as to whether it was appropriate to make a finding of dangerousness under the Criminal Justice Act 2003, and concluded that there was no doubt of a significant risk to the public of serious harm. He accordingly passed a sentence of imprisonment for public protection. He noted that there was no psychiatric reason for the appellant's conduct and unless he changed, as he had been advised in both the pre-sentence report and in the psychiatric report, his activities, attitude and style he posed a significant risk of serious harm.
9. In his judgment the appellant was a very dangerous man who, in an unprovoked attack, had used a knife nearly killing the complainant. In assessing the minimum term for detention for public protection the judge had regard to the decisions in Lang [2005] EWCA Crim 2864, Sheppard and Hughes. In his judgment the appellant's case was more serious so that the starting point was ten years, and allowing for a plea of guilty the minimum term should be five years less the time spent in custody.
10. Mr Lewin, on behalf of the appellant, sought to resurrect part of the original application for leave to appeal, which had been rejected by the single judge. The original grounds of appeal challenged both the detention to public protection and the minimum term. The single judge had concluded that the judge was fully entitled to conclude that there was a significant risk that the applicant might cause serious harm to members of the public by the commission of further specified offences, and thus the imprisonment for public protection was fully justified.
11. It seems to us that the judge had almost no alternative than to reach that conclusion, having regard to the facts of the case, the antecedents of the defendant, the contents of the psychiatric reports and indeed the express terms of an addendum to the psychiatric report, which warned the judge that when Mr Challenger left custodial sentence if he:

"continues to abuse illicit drugs and alcohol and mixes with some members of his former peer group, and is not able to mature... in my opinion ... he would be a significant risk of causing harm to the public."

12. We have no doubt whatsoever that the judge was fully entitled to come to that conclusion. Indeed it is difficult to see what other conclusion he could have reached and the renewal to the application to challenge that part of the sentence is refused.
13. Mr Lewin then turned to the question of the minimum term. This is an area of the law which can give rise to some confusion. The minimum term means precisely that. It is the minimum term that must be served before an individual prisoner is considered for release by the Parole Board, for which purpose the Parole Board must be satisfied that he no longer represents the danger that is the basis of the imprisonment for public protection. Whether the sentence be one of five years, or more or less, has no direct bearing on the date upon which the individual defendant will be released.
14. As is apparent from the express terms of the sentencing remarks, the determinate sentence which the judge had in mind was one of ten years. It also follows from his remarks that to the extent that he must have given credit for a plea, the sentence that he might have had in mind, following a trial, must have been in the region of 13 to 15 years. Against that background Mr Lewin re-visits the decisions that we refer to a moment ago, and which were considered by the trial judge.
15. So far as Laing [2005] EWCA Crim 2864 is concerned, some reliance was placed upon the observations of the court in relation to an individual defendant who was involved in that conglomerate appeal, namely Sheppard. However, it is plain from the reports that the conclusion of the judge below, that Sheppard should serve a minimum term of four-and-a-half years, in circumstances which are not entirely dissimilar from the present case, is not something with which the court in fact heard any argument. Nor was it disposed to express any view, the thrust of the appeal being directed at the question of whether it is appropriate to enclose imprisonment for public protection. Accordingly we leave it out of count.
16. Mr Lewin goes on to a rather firmer and more secure ground when he drew our attention to the decision in Attorney General reference No. 26 of 2004 (R v Hughes) [2004] EWCA Crim 1384, where a 35-year old offender used a seven-inch blade to stab a victim in the neck following which the victim sustained a substantial loss of blood with permanent scarring. The judgment given by the vice-president reverted to an earlier decision of the vice-president in Attorney General's reference number 18 of 2002 (Christopher Samuel Hughes) [2002] EWCA Crim 1127 when in considering incidents of the use of a knife, in a manner contrary to section 18 of the Offences Against the Person Act, the vice-president expressed the opinion that the authorities demonstrated that a sentence within the bracket of three to eight years was appropriate.
17. Mr Lewin, against the background of those decisions and the mathematics of any consideration of the judge's imposition of the minimum term of five years, seeks to persuade the court that on any view the determinate sentence of ten years was too long and accordingly the minimum term of five years was equally too long. Mr Lewin emphasises that the defendant is only 17 years old, that the sentence that he faced as a result of this hearing suggested a term following a trial, nearly twice as much as the maximum which the vice-president adverted to in Hughes. Accordingly, Mr Lewin sought to persuade this court that this sentence was not merely severe, but wholly excessive.
18. There are, it seems to us, significant countervailing considerations. The indications, which are given in Hughes, as to the normal bracket for this class of offence are indeed only indications. This was an unprovoked attack on a complete stranger who, having sought to escape, was pursued and who was then stabbed twice in circumstances in which the only motive appears to be personal pleasure of the defendant. We have not forgotten the contents of the pre-sentence report, which, having identified the appellant as a persistent offender with a number of previous convictions, has nonetheless spent much of his life with foster carers and indeed has been placed with no less than 90 different families. He had learning difficulties, he was emotionally immature and, despite attending anger management counselling, had clearly not matured enough to avoid losing his temper without any justification, added to which he was a heavy smoker of cannabis and a heavy drinker.
19. Features of this case which strike us with particular concern are how bad an example of a stabbing this was. Knife crime is very prevalent throughout this country and the courts must seek to do what they can to stamp out the ready use of knives, which can so readily cause serious injury and even death. This is a striking example of a stabbing which very nearly caused death. It is true that the charge of attempted murder was not pursued, but if for any reason the medical staff had been unable to save the complainant, the defendant would have found himself facing a charge of murder and he would therefore have faced, in effect, a determinate term of some 24 years.
20. It may well be that the level of sentencing within this class of case, namely knife attacks resulting in section 18 convictions, need review, but we accept Mr Lewin's premise that the material that is presently available to the court by reference to the authorities does not justify a minimum term of as much as five years, or put it another way, a determinate term following a plea of something in the region of ten years.
21. Nonetheless we regard this as a very bad case giving rise to something very akin to the risk of immediate death. Accordingly, whilst we are minded to adjust the minimum term, we will not adjust it more than to a minimum of four years, having some considerable sympathy with the judge as to the figure that he originally spoke to. Again we would like to emphasise that this does not, for a moment, reflect necessarily the period of time that this defendant must serve in custody. Indeed, given the contents of the pre-sentence report and the psychiatric report, it seems likely that he will serve a term substantially longer, but the minimum will be four years and, to that extent, this appeal is allowed.
22. LADY JUSTICE HALLETT: Thank you.