England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		19 February 2008

Tuesday 19 February 2008

LORD JUSTICE MOSES: I will ask the Recorder of Liverpool to give the judgment of the court.

THE RECORDER OF LIVERPOOL:

1. On 5 November 2007, at the Crown Court at Worcester, the applicant pleaded guilty on re-arraignment on the day of trial. On 4 December 2007, he was sentenced by His Honour Judge McCreath to two concurrent terms of seven-and-a-half years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The two offences were of damaging property being reckless whether life would be endangered, contrary to section 1(2) of the Criminal Damage Act 1971. At the time of sentence the applicant was aged 17 years and 8 months.
2. A co-defendant, Kevin Martin Clee, who was 20 months older, pleaded guilty at the plea and case management hearing. He was sentenced to concurrent terms of six years' detention in a young offender institution.
3. The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.
4. At about 10.20pm on 17 December 2006, a freight train was being driven at about 50mph towards Kiderminster Railway Station by 56 year old Mr Joseph Paxton. Waiting on the footbridge near the station were the applicant and his co-accused. Also coming into the station was a passenger train travelling in the opposite direction. The youths dropped from the bridge a large object consisting of bricks fixed together with mortar, weighing 20.6kg (about 45 pounds). Their intended target was the roof of one of the carriages on the passenger train. The object hit that train. It caused a dent, the subject matter of count 1. It then bounced into the path of the oncoming freight train, the subject matter of count 2. The object directly hit the reinforced glass window of the train, causing it to collapse inwards. The object struck Mr Paxton in the face and the chest. He was knocked unconscious. The train continued to travel at 50mph for about half a mile before automatic fail-safe mechanisms set off the train's braking system. It was a further quarter of a mile before it stopped fully.
5. Mr Paxton was hospitalised. He suffered severe facial injuries consisting of multiple fractures to the right side of his face and multiple orbital fractures to the right eye socket, totalling 29 fractures. His right cheekbone was fractured just above the right ear. He had four serious cuts to his face and one to his neck which all required sutures. He suffered extensive bruising to his chest, brain trauma and swelling. He has experienced significant difficulties since the incident, both physical and psychological. He continues to experience considerable pain and discomfort and may do so for the rest of his life. It is expected that he will no longer be able to continue in his employment.
6. The case was well publicised on television, prompting people to come forward if they had any information about the incident. Most of the evidence in the case came from the families and friends of the accused who came forward with information to the police.
7. The applicant was arrested in early January 2007. He lied in interview and pleaded not guilty at the plea and case management hearing on 20 June 2007. He maintained that plea at various hearings prior to the trial date on 5 November. He changed his plea to guilty on the day of trial.
8. Offences pursuant to section 1(2) of the Criminal Damage Act 1971 are serious specified violent offences pursuant to the provisions of Schedule 15 of the Criminal Justice Act 2003. The applicant had previous convictions, including a conviction for another serious specified violent offence of robbery in April 2005. Consideration needed to be given to the dangerousness provisions of the Criminal Justice Act. The author of the pre-sentence report assessed the applicant as a medium to high risk of re-offending, and a low risk of causing serious harm to the public by the commission by him of offences in the future. By reason of that fact an indeterminate sentence of custody was not imposed. The issue for consideration now is the length of the determinate sentence that was imposed.
9. In the grounds of appeal four specific matters are raised: the starting point was too high; insufficient regard was given to the applicant's age; no or no sufficient reduction was given for any mitigation put forward by the applicant; and insufficient credit was given for the plea of guilty. Mr Davidson has developed each of those grounds in succinct submissions before us this afternoon. In addition, he has drawn our attention to three cases, one of which R v Goodfellow [2008] 1 Cr App R(S) 147, [2007] EWCA Crim 1733, relates to two youths, aged 15 and 16, who were charged with arson involving the use of petrol, where five year sentences were reduced to three.
10. In his sentencing remarks the learned judge referred to the terrible injuries suffered by Mr Paxton, the fact that he could have died and the fact that the train ran out of control for a significant distance which could have had disastrous consequences. The offences were extremely serious in their actual effects and dreadfully serious in their potential effects. Such highly reckless behaviour committed for amusement demanded substantial punishment. He set a starting point for an adult of ten years. He reduced the starting point by two years to eight years to reflect the age of the applicant. He reduced that by seven-and-a-half per cent, which amounted to six months, for the guilty plea tendered on the first day of trial. Seven-and-a-half per cent is slightly less than the ten per cent recommended by the Sentencing Guidelines Council. The applicant had been before the court several times and had had several chances to own up to what he had done, but had waited until the very last moment to enter his guilty plea. In the co-accused's case the starting point was reduced by one year to reflect his older age. He received the full one-third discount to reflect his guilty plea at the first reasonable opportunity.
11. In our judgment the judge's carefully reasoned sentencing remarks and the logic relating to them cannot be faulted. We agree with all of the sentiments express by him. That said, we must be mindful of what is the appropriate sentence for acts of this nature where serious injury but not death result, and in circumstances where they are committed by very young offenders. We bear in mind the decision of the House of Lords in R v Hancock and Shankland (1986) 82 Cr App R 264, where the adult offenders in that case dropped a concrete block of similar weight from a bridge onto a taxi's windscreen and killed the taxi driver. The murder conviction was reduced to manslaughter and sentences of eight years' imprisonment were substituted. That was a case which was decided 20 years ago. Sentences for involuntary manslaughter have increased since that time. Nonetheless, regard must be had to the fact that no death resulted here and to the fact that the applicant is a young person and not an adult. For these reasons only we are of the view that the total sentence that was imposed was manifestly excessive. In such circumstances we grant leave to appeal and we deal with the appeal by substituting concurrent sentences of six years' detention. To this extent the appeal is allowed.