England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		11th December 2007

1. LORD JUSTICE THOMAS: This is a Reference, under section 36 of the Criminal Justice Act 1988, by the Attorney-General of a sentence imposed upon John Bushell on 18th September 2007.
2. The offender is now 27 years of age. He was tried with a co-defendant at Oxford Crown Court before His Honour Judge Hall and a jury on two counts of attempted murder and two counts, under section 18 of the Offences Against the Person Act 1861, of causing grievous bodily harm with intent as an alternative. He was convicted of the two offences under section 18 and his co-defendant was acquitted.
3. It is possible we think to do justice to the facts of the case by summarising them in this way. The offender and his co-defendant were engaged in building work at Milton Keynes and staying at a hotel in Stony Stratford. On the evening of Saturday 4th November 2006 they went drinking at one public house and then moved to another. At the second of the public houses there were two others, Brian Lydon, then 28, and Detcho Stoyanov, who was then 35.
4. There was an incident which had nothing to do with the offender or co-defendant but did involve Brian Lydon. This resulted in a brawl outside the pub, which involved both Brian Lydon and the offender. They got into a fight. The offender was punched and kicked by Brian Lyndon and his brother. He ended up with two black eyes and bruises to his face.
5. Brian Lydon and Detcho Stoyanov left and walked home. The offender left after exhibiting a display of temper against one of the bouncers and indicating that he wanted to attack those who had started the brawl, got into a white van and went, not towards the hotel at which he had been staying but in the same direction in which Brian Lyndon and Detcho Stoyanov had gone. They caught up with the two men. It is clear that a murderous assault occurred. A witness saw a metal bar, some half a metre long, being used by the offender on Brian Lyndon, on the back of the head and further blows with this metal bar being delivered to him when he was on the ground, whilst the offender held Brian Lyndon with his other hand. It is clear that he had attacked Detcho Stoyanov earlier. He was already on the ground and he was seen to attack him again with the iron bar. The offender only stopped when the person who witnessed it sounded his horn.
6. The offender was arrested not long after the incident. He denied that he was the person who had made the attack and said he was elsewhere at the time.
7. The injuries were horrific. Detcho Stoyanov was rendered deeply unconscious by the attack. There were multiple fractures to his skull and many small fragments penetrated into his brain. There was an underlying extradural hematoma. It was assessed that he had a 5 per cent chance of survival. Death was therefore almost inevitable. A pathologist conducted an ante-mortem examination, which revealed he had received four separate impacts, sufficient to split the skin and cause significant brain injury.
8. The assessments that were available at the trial of the degree of injury were following: Dr Pitman, in an assessment dated 25th July 2007, stated Detcho Stoyanov was bed ridden, that his disability was such that he could not manage his personal care, he was incontinent, that he uttered single words and phrases which he repeated and it was unclear how much he understood. Observation of his limited communication suggested that he had impaired cognition, exhibited signs of frustration, agitation and depression. He was being fed via a tube to his stomach. At the time of the trial he remained severely brain damaged. He had spastic tetraplegia with severe spasticity. He had associated severe flexion contractures in all four limbs and only limited movement of his neck. He was in constant faeces and used a catheter. He had bedsore infections and urinary tract infections. He had been sent to a neuro rehabilitation unit in Aylesbury for ongoing care.
9. His father had made a victim impact statement pointing out how much his family had depended upon him, that is to say not only his partner and his child by also his parents in Bulgaria to whom he had given financial assistance. It is quite clear that the prognosis was very bleak.
10. As to the other victim, Brian Lyndon, he sustained multiple skull fractures and a bi-frontal extradural hematoma with compression of the brain. He was hospitalised for two weeks. He suffers from post-traumatic amnesia for 16 to 18 hours from the time of the attack; this is a condition associated with moderate brain injury. His current position was summarised by the clinical psychologist, Dr Turner, who had carried out two neuro-psychological assessments of Brian Lydon. His conclusions were that although he appeared to have made a reasonably good recovery from his injuries, his neuropsychological profile and self-reported symptoms displayed features associated with moderate to severe brain injury. Some of those features might resolve spontaneously but others might be more enduring and the long-term consequence of brain injury was difficult to estimate; he needed regular reviews.
11. In his victim impact statement Brian Lyndon described the reduced movements, particularly in his right hand, the permanent lump that he has on the left side of his head and other physical attributes of the injury. After an interval of six weeks he was fortunate enough to be able to return to work, but felt loss of self-confidence and general competence and had abandoned his opportunity to venture into a new business.
12. The offender has a large number of previous convictions resulting from 18 separate court appearances. Most were offences of dishonesty and driving offences but his record of violence can be summarised as follows: in January 1997 he was convicted of two counts of assault occasioning actual bodily harm and one count of obstructing a police officer. He was given a community service order of 100 hours a week. He had attacked a 16 year old by punching and kicking him, causing him minor head injuries. He gave as a reason for the dispute that he had a long-standing dispute with a friend of the victim. On 8th May 2000 he pleaded guilty to an offence under section 4(1)(a) of the Public Order Act 1861; he was drunk in a public car park on the seafront, acting in a drunken group and caused damage to parked vehicles. He was sentenced to a 12 month conditional discharge. On 12th February 2003 he pleaded guilty to assault occasioning actual bodily harm. He had assaulted a landlord of a public house with a pool cue, hitting him three times causing injury. He was sentenced to 6 months' imprisonment. Finally, on 15th March 2006, the offender pleaded guilty to common assault and was sentenced to 3 months' imprisonment and a 24 month licence premises exclusion order. He had assaulted a publican by biting him on the finger and drawing blood during an argument.
13. It was accepted by counsel for the offender that either a life sentence or a sentence of imprisonment for public protection should be passed. That was accepted in the light of his previous convictions and the seriousness of the current offence. The judge indicated that a sentence of imprisonment for public protection was appropriate. It was submitted that in selecting the determinate period, the judge should exclude the element normally imposed in a determinate sentence for public protection.
14. In his sentencing remarks the judge described the injuries sustained and said:

"This was a savage attack on two people and you must have wielded that bar to great and very damaging effect and you must have caught them by surprise as they were walking peacefully home."

He passed a sentence of imprisonment for public protection; the determinate period would have been 12 years and, in accordance with the statutory provisions, that resulted in a minimum period of 6 years less the 313 days spent on remand.

15. It is submitted by the Attorney-General that in the circumstances of this case, the judge failed to fix a determinate sentence that reflected the very high degree of culpability and the harm caused, particularly as the judge had failed to take into account the fact that there were two victims.
16. There were clearly the following aggravating features to these very grave offences. First, there was premeditation in that the offender had armed himself with a metal bar and gone deliberately to find the victims. He attacked the victims by surprise, at night and from behind. He continued to attack the victims when they were on the ground. He only desisted when he was seen. The injuries which we have described were of extreme severity. It was a revenge attack.
17. It can therefore be seen that there was a high degree of culpability, resulting from the fact that it was a premeditated attack, that it had been committed whilst under the influence of drink, a weapon had been used and he had failed to respond to his previous punishments.
18. There is only one possible mitigating factor, and that was that there was a small degree of provocation resulting from the earlier matters, but the attack went way beyond anything that could be conceivably be thought proportionate. It is also clear that this was a case where there was a very serious degree of harm to two people in the manner we have set out.
19. We have been referred to a number of authorities but we think it is only necessary to refer to one so that we do not add to the accretion of authority: Attorney-General's Reference No 1999 of 2005 (R v Gary Flynn) [2006] EWCA 228, [2006] 2 Cr App R(S) 76. At paragraph 18 of the judgment of the Court given by Keene LJ, the Court said, summarising the submissions of the Attorney-General:

If and in so far as the court is considering a commensurate sentence of finite length, reliance is placed on two authorities: Moore and Feeney [2003] EWCA Crim. 3698, [2004] 2 Cr.App.R (S) 153 and Desourdy [2003] EWCA Crim 3727, [2004] 2 Cr.App.R (S) 188. Those are said to provide guidance as to the appropriate length of sentence for a section 18 offence with consequences of the very gravest kind, as in the present case,"

where the victim was in a quadriplegic state. They indicated it was said a sentence of 12 years after a trial or in the range 9 to 10 years after a plea of guilty.

20. It is, we think, unnecessary to refer to the other cases, although our attention was drawn to R v Moore & Feeney [2003] EWCA Crim 3698, [2004] 2 Cr App R(S) 30, where the victim was in a vegetative state as a result of a severe attack, and the court reduced the sentence of 15 years to one of 12.
21. It seems to us that it is clear from the authorities, and it is not seriously disputed before us, that a sentence in the range of 12 years would have been appropriate, if there had been but one victim in the present case. However, this is a case where there were two victims who had sustained very serious injuries, one more serious than the other. It is also clear that there was nothing to guide this very experienced trial judge who had, unlike us, the benefit of seeing the whole of the evidence as it emerged during the trial.
22. However it does seem to us that in a case where there is a very high degree of culpability, as is the case here, and there is a very high degree of harm, with two victims, that the fact that there are multiple victims must, as the Attorney-General has submitted, be reflected in the sentence. The sentence of 12 years therefore in this case would, it is accepted, have been appropriate in the case of a single victim, but we accept the submission that it was not an appropriate sentence where there were the two victims.
23. It seems to us, taking into account all of the factors, in a case such as this a sentence where two victims were involved, who received injures of the type that we have set out, an appropriate sentence would be in the range of 15 to 16 years. In this particular case, taking into account to a small degree the circumstances in which the attack took place and the very limited amount of mitigation, we consider that the notional determinate sentence should have been one of 15 years. It is the case that credit is given for what is known as double jeopardy; we therefore reflect that in our decision to substitute for the minimum period imposed by the judge of 6 years, one of 7 years less time on remand, the reduction marginally below half being to reflect that fact of double jeopardy. We therefore give the Attorney leave to bring this Reference, and substitute the sentence we have indicated.