British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General Reference No 95 of 2007 [2007] EWCA Crim 2563 (19 October 2007)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/2563.html
Cite as: [2007] EWCA Crim 2563
[New search] [Printable RTF version] [Help]
CRIMINAL DIVISION
Strand London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE ANDREW SMITH
HER HONOUR JUDGE GODDARD QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
____________________
| REFERENCE BY THE ATTORNEY GENERAL UNDER | ||
| S.36 OF THE CRIMINAL JUSTICE ACT 1988 | ||
| ATTORNEY-GENERAL'S REFERENCE NO 95 OF 2007 |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr R Priestly appeared on behalf of the Offender
____________________
Crown Copyright ©
- LADY JUSTICE HALLETT: The offender Jamie Scott pleaded guilty at Plea and Case Management Hearings in May 2007 to two offences, namely wounding with intent to do grievous bodily harm and burglary. On 3rd August 2007, at the Crown Court at Manchester, he was sentenced by HHJ Atherton for the offence of wounding with intent to four years' detention in a Young Offender Institution and for the offence of burglary he was sentenced to a concurrent term of six months' detention, making a total sentence of four years. Her Majesty's Solicitor General considers the sentence unduly lenient and seeks leave to refer it to us. We have no hesitation whatsoever in granting leave, the reasons for which will become clear when we rehearse the facts of the offences.
- The offender was released on licence from a Young Offender Institution on 7th November 2006. He remained subject to three conditional discharges which had been imposed in respect of offences of criminal damage and public disorder. Within a matter of weeks he was out committing another offence. In the early hours of the morning of 28th December 2006, with a number of others, he broke into a public house in Manchester. He cut himself on entering and left traces of his DNA behind. His entry disturbed the landlady, who lived upstairs and was sleeping alone at the time. She came downstairs but fortunately too late to discover the intruders. They committed the offence under the influence of alcohol and in order to obtain more alcohol. Three part bottles of spirits were stolen with an estimated value of £15. Damage to the tune of £200 was caused.
- On 20th January 2007 the offender was arrested and interviewed. He declined to give an account of why his blood was at the scene. He was, perhaps surprisingly, remanded on police bail. Then, on 17th February 2007, he committed the far graver offence of wounding with intent. His victim was a young man called Ryan Kay, aged 16 at the time of the offence. There had been a history of antagonism and violence between the offender, his co-accused named Blake Hayes and others, and the victim and his associates. On an earlier occasion the victim assaulted the offender with a knife, causing wounds to his abdomen which required hospital treatment. The offender declined to report the incident to the police, preferring, it seems, to take his own revenge.
- On the Friday night of 16th February 2007, Ryan Kay was at a birthday party at a house in the Moston area of Manchester. His brothers and many friends were present. He learned that something was afoot between the offender's group and one of his (Kay's) friends, a boy called Nathan Shepherd. In the past Shepherd had been involved in incidents of violence with the co-accused Blake Hayes. Unfortunately, eight young people decided to leave the party and they went to assist Shepherd. They had all been drinking. They found the offender in a nearby street. By now it was in the early hours of the morning. The victims can be seen on CCTV footage acting in an aggressive manner towards the offender. At that stage he was on the retreat. Threats and abuse were exchanged. The offender was with a young woman, Toni Callan. She decided to use her mobile phone to summon assistance. This led to a drastic escalation of events.
- Blake Hayes and others arrived. They had in their possession a brandy bottle which was later used as a weapon by the offender. The reinforcements rushed from their car. The victim and his companions ran off with the victim running in one direction and his companions running in the other. The victim was pursued by the offender, Hayes and others. Most of those who were pursued escaped unharmed. However, there came a time when Ryan Kay ran out of steam. He came to a standstill. He was resigned to the fact he was going to be attacked and that is precisely what happened.
- He was surrounded by the offender and his group. He was knocked to the ground and he was subjected to a sustained attack involving kicking and stamping. The offender was armed with the brandy bottle which he deliberately fashioned into a particularly offensive weapon with a jagged edge. He too attacked the victim by hitting and beating him. He stabbed the victim repeatedly with the bottle. During the course of the attack he was heard by the victim to say "you're gonna get stabbed". Later he was heard by a witness to say, "let's go and finish him off". Whilst on the ground, the victim received stabbed wounds to the lower back area. There were multiple lacerations of 1 to 2cm in length. Whilst on the ground he was curled into a foetal position trying to protect his face. He also received a number of injuries to the back of his hands which indicated attempts to stab him in the face.
- The attack appeared to come to an end. Mr Kay was able to take hold of some railings and to pull himself up onto his feet. As a result, he was no longer protecting his face. At that point the offender deliberately thrust the jagged bottle neck into the victim's right eye. A witness pulled the offender away. Both he and Blake Hayes shouted at the victim, telling him that he had deserved what he got. The victim was helped away from the scene. He was taken home, the police were called and he was then driven to hospital. During the course of this he appears to have lost consciousness.
- The damage to his eye was so serious his eyeball had to be removed. There were cuts to his face and upper and lower eyelids. There was also a fracture of his nose and he had pains to his ribs and his neck. Tragically, the victim has been left with virtually no sight at all. Since birth he has had very poor vision in his left eye. The result of the attack is that he is now virtually blind. He can see only colours and shapes. He says he is unable to appreciate television and cinema, that he cannot write, draw or go fishing as he used to do. He will never be able to drive. He feels that he will never leave his house alone. The effect of the attack has left him depressed and angry. He has scars over a substantial area of his body and he will have to endure at least one more operation. We could go on. Suffice it to say the effects of the attack upon him have been devastating.
- The offender was arrested at his home address on 18th February. He made no comment when interviewed. He was 18 at the time of the attack. He is now 19. Between 30th July and 2nd August 2007, Blake Hayes was tried in respect of the same attack. He was found guilty of unlawful wounding.
- The offender has convictions for a number of offences beginning in 2004. They include offences of violence, criminal damage, dishonesty and road traffic offences. On several occasions he has been sentenced to detention. The previous offences said to be of particular relevance to the section 18 offences are as follows: an offence contrary to section 5 of the Public Order Act 1986 for which the offender received a 12 month conditional discharge, an offence contrary to section 4 of the same Act for which he received a sentence of four months detention and training, another offence contrary to section 5 of the Public Order Act, committed in June 2006, for which he received a conditional discharge, and an offence of having a bladed article in a public place, again committed in the summer of 2006, for which he was also sentenced to two months' detention. This last offence involved the possession of a 12-inch kitchen knife.
- Mr Patterson on behalf of Her Majesty's Solicitor General suggested the following offences were of particular relevance to the burglary matte: namely two offences of theft and an offence of taking a motor vehicle without consent.
- Mr Patterson also wished to highlight passages in the pre-sentence report, which referred to the offender's attitude to his offending. This caused the author considerable concern; as did his approach to alcohol consumption. He was identified by the author of the report as a prolific offender. He was assessed as posing a high risk to the public whenever he feels aggrieved by them. His abuse of alcohol contributes to the risk.
- In his sentencing remarks, the judge described the section 18 offence as one of the most serious offences the offender could commit and the incident as one of the most appalling cases of street violence he could think of. Yet, and despite the assessment of risk in the pre-sentence report, at no stage during the sentencing hearing does the learned judge appear to have considered the provisions of section 224 to 229 of the Criminal Justice Act 2003.
- According to Her Majesty's Solicitor General, the following aggravating features are present. (1) In relation to the section 18 offence, it was committed to exact revenge for the earlier incident. (2) There was the adaptation and use of the weapon. (3) The attack was sustained and determined. (4) The wounds indicated repeated attempts to stab the victim in the face and in the head. (5) This was a group attack which was committed on a 16 year old vulnerable victim. He was outnumbered. (6) the attack led to grave injuries which have had a devastating impact upon the victim.
- Mr Patterson also suggested that the offender's record and pattern of offending indicate this is a young man who has failed totally to respond to community penalties and indeed to periods of detention. Sadly, his offences keep escalating. Finally, he reminded the court that the offence was committed shortly after being released on bail in respect of the burglaries.
- We turn to the aggravating features of the burglary offence: (1) the premises were occupied (2) the offence was committed at night while the landlady slept alone (3) she was fearful for her own safety (4) the offender was accompanied by others (5) the offender had committed previous offences of dishonesty (6)he was on licence and subject to court orders at the time he committed the offence.
- Mr Patterson suggested there were two primary mitigating features, his age and his plea of guilty. However, Mr Patterson submitted this court should adopt the same approach as the trial judge said he was adopting, namely that, given his previous record, the amount of discount the court should give to this young man simply because of his age was limited.
- Mr Priestly on behalf of the offender added to those mitigating features in this way. He invited the court to bear in mind the observations of the secretary of a local resident's association about the bad behaviour of the complainant and his associates. They were said to be looking for trouble that night, as they often did. He reminded us how the incident started and the fact that it does not seem that the offender went out that night looking for his revenge. As the judge himself observed, it could so easily have been the offender who had been at the receiving end of serious violence. The tables turned during the course of the chase. Mr Priestly argued that the judge was best placed to assess the criminality of the offender and whether or not this young man was a danger to the community within the terms of the Criminal Justice Act. He argued that it was not necessarily unreasonable to decline to make a finding of dangerousness. His record was, as he put it, "bad but not that bad". It indicates an "antisocial obnoxious individual" rather than a dangerous one. He conceded that the sentence was lenient but invited this court to say, given those factors, it was not unduly lenient.
- We turn first to the question of dangerousness. It was common ground that we have power to make the statutory determination and to pass a term of detention for public protection if that is what we decide is required. It is in our view unfortunate, to say the least, that the judge here failed in his statutory duty to consider the dangerousness provisions of the Criminal Justice Act 2003 and that counsel failed to bring this to his attention.
- We have no doubt whatsoever, given the circumstances of the offence and the offender, that there is only one course available to us. Any reasonable judge would be bound to find that this young man poses a high risk to members of the public of serious harm occasioned by the commission by him of further violent specified offences. His record speaks for itself. His attitude towards his offending and his attitude towards the abuse of alcohol are sufficient to cause this court great concern. His behaviour that night shows that, given any degree of provocation, which may be present on the streets of Manchester in the early hours, he will react in an exceedingly violent fashion. If not already armed, he will arm himself with a vicious weapon. If he attacks he is prepared to continue attacking until his victim his gravely injured.
- This attack was sustained and brutal. It was committed by a gang of young men, with this offender playing his full part as part of an ongoing feud with the complainant. The complainant was beaten, stabbed and kicked as he lay defenceless on the ground. Given its severity, the initial attack could have been fatal. But, that was not enough for this young man. When he saw his wounded and defenceless victim stagger to his feet the offender delivered the unkindest cut of all, he used the bottle to stab his victim in the eye. The blow was deliberate and clearly aimed at the face (as others had been). At the very least he risked blinding his victim in one eye and in fact caused almost total blindness. We find it hard to believe that a young man, whatever the perceived slight, could act in that dreadful fashion. We accept that the complainant himself may have been no angel but nothing he had done in the past could come close to justifying or mitigating an attack of this kind and its appalling consequences.
- Further we must not forget that at the time of the attack the offender was on licence. He was on bail. He was subject to conditional discharges and he had a record for aggressive behaviour. Finally there was yet another offence for which he fell to be sentenced. namely a serious offence of burglary, committed mob-handed at night whilst a woman slept upstairs alone. The judge, in our view, appears to have paid scant attention to that offence.
- Thus, despite Mr Priestly's brave attempt at upholding the judge's sentence, we have no doubt whatsoever that the catalogue of offending and the catalogue of aggravating features for these two offences lead inevitably to the conclusion that the sentences passed were unduly lenient. As we have indicated, we have no doubt that this young man is dangerous within the meaning of the Criminal Justice Act and therefore we impose a term of detention for public protection. In fixing the notional determinate term we shall bear in mind both the offences. In our view, the offender, despite his age and despite his pleas of guilty, could not have complained had he received a total determinate sentence in double figures. Bearing in mind he is being sentenced for the second time for the same offences, we shall specify a period of four and-a-half years as the relevant period of the term of detention.
- Mr Patterson, I think he deserves credit for a certain number of days.
- MR PATTERSON: Yes, it was 150 days.
- LADY JUSTICE HALLETT: He will have credit for those days. (pause) Mr Patterson, having swept up the burglary in the determinate term, should we say no separate penalty is appropriate on the burglary matter?
- MR PATTERSON: Yes, absolutely appropriate. It has been reflected in the setting of the minimum term in relation to the wounding with intent.
- LADY JUSTICE HALLETT: No separate penalty on the burglary. Thank you very much.