England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ Paget QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/02/2009

Mrs Justice Dobbs:

INTRODUCTION

1. On 19^th March 2008, this 16 year old applicant was convicted before His Honour Judge Paget QC at the Central Criminal Court of two offences: attempted murder and possession of a firearm with intent to endanger life. Both offences arose out of the same set of circumstances.
2. He renews his application for leave to appeal against sentence after refusal by the single judge.

FACTS

3. The offences occurred in October 2007 when the applicant was 14 years old. The event appears to have had its origins in an incident some three months earlier, when the victim, 26 year old Jason Major, was robbed by a gang of youths. He believed that this applicant was one of the group. On the evening of 14^th October 2007, Mr Major was walking in Clifton Way, Peckham when he walked past the applicant. Words were exchanged between the two. The applicant said words to the effect of "Come onto my estate". Mr Major continued on to his partner's address. Later, Mr Major's partner gave him a lift home in her car. During the journey, he received a phone call from the applicant asking to meet him as "he had something for him" They then drove around Clifton Way looking for the applicant. They found him and stopped the car. The applicant came towards them with another man. He produced a handgun and pointed it at Mr Major as he sat in the car. The car had its door shut. The applicant pulled the trigger. The gun did not fire. He pulled the trigger again. The bullet hit Mr Major in the shoulder and lodged in his back. Mr Major's partner drove to the nearest police station. Mr Major was taken to hospital, where the bullet was removed during surgery. It did not cause serious injury. The applicant was arrested the following day at his home address. He made no comment in interview. He was picked out at an identification procedure as the person with the gun by both Mr Major and his partner.
4. The defence case was that Mr Major was well known for being violent and intimidating – he had a number of previous convictions. On various occasions prior to the shooting it was alleged that he had made threatening gestures towards the applicant. When he met Mr Major by chance, it was Mr Major who was claiming he was going to get something. Mr Major went off in the direction of the applicant's home, so he went to an older friend's place. He obtained Mr Major's number and phoned him to make sure that Mr Major did not come looking for him. On leaving his friend's house, the friend gave him a gun, in case he needed it for protection. As he walked home, the car arrived and stopped. He saw Mr Major in the front seat fumbling with his hands – believing that he might be going for a gun, he panicked and fired twice. He did not intend to kill or hit the victim. He then ran from the scene and discarded the gun.
5. The applicant was born on 10^th December 1992. He was 14 at the time of the offences and 15 at the time of trial and sentence. He has just passed his 16^th birthday.
6. The case was listed for sentence, but, because there had been a request by the author of the pre-sentence report that a psychologist's report be obtained to consider further the issue of dangerousness, the judge adjourned the case for a report to be prepared.
7. On the day of sentence, the judge had two reports which had been prepared for the hearing: a pre-sentence report plus an addendum to that report and a psychological report. He had the head teacher's report dealing with the applicant's expulsion from school in the late spring of 2006. He had two letters, one from the applicant's personal tutor and one from his youth worker. Both were very positive. The contents of the two reports will be considered at a later stage in this judgement. Suffice it to say, for present purposes, that both authors found that this applicant was not dangerous.
8. The applicant has two previous court appearances in May and August 2007 for possession of a class C drug (cannabis) with intent to supply and possession of a class C drug. A referral order was imposed.
9. When sentencing the learned trial judge made the following findings consequent on the jury's verdict:

i) that the applicant had phoned Mr Major and challenged him to meet him, thus he had lured the victim;

ii) that he had fired twice, the gun having misfired on the first occasion;

iii) that he intended to kill the victim to show how big and important he thought he was;

iv) that the truly frightening aspect was, that at the age of 14, he was able to arm himself with a loaded gun in the space of half an hour.

10. The judge indicated that, in his judgment, the offences themselves justified a finding of dangerousness. He noted the applicant's school report which he referred to as a depressing one with evidence of disruptive behaviour, truancy and violence. Although the applicant had been excluded after a fellow pupil had been injured, he had not been convicted of that incident, and thus would not be treated as someone who was guilty of the attack. However, the fact that he had been permanently excluded from school could not be ignored. It was noted that he was doing well educationally whilst in custody. The judge noted that the authors of the two reports came to the conclusion that the applicant was not dangerous. The judge disagreed – hence the indeterminate sentence was imposed.

GROUNDS

11. The grounds are that the sentence a) was wrong in principle, that the criteria for an indeterminate sentence were not made out, alternatively, if they were, then an extended sentence would have been sufficient and b) that the minimum term of 6 years the equivalent of a 12 year determinate sentence was manifestly excessive.
12. We grant leave to appeal.

THE GROUNDS DEVELOPED

13. In support of his grounds and before the court below, the following mitigation was advanced:

i) the applicant's youth and the relevance of that both to the type and length of sentence;

ii) that he was not the owner of the gun;

iii) that he was an impressionable youth who must have been influenced by other older people;

iv) that the complainant, who was considerably older than the applicant and with previous convictions, had gone to look for the applicant to confront him;

v) no life threatening or serious permanent injuries had been caused.

vi) his remorse.

14. So far as the issue of dangerousness is concerned, reliance was placed on:

i) the lack of any previous convictions for violence;

ii) the view of the probation officer, who was an experienced youth offending team worker and had overseen the care of the applicant throughout his remand in custody, that he was not dangerous;

iii) the view of the psychologist that the applicant was not dangerous

iv) the background revealed in the reports.

15. It is submitted, and the judge seemingly accepted the submission, that the allegation that the applicant had stabbed another child at school should not be taken into account as proceedings had been discontinued at the magistrate's court. (For sake of completeness we note that this was an allegation that the applicant assaulted another school boy with a knife. The evidence in the court's papers consists of a few lines on a piece of paper from a couple of anonymous students. The victim did not identify the applicant as being involved – there were said to be three youths involved. The coat of an older pupil said to be involved, was found to be covered in blood – which might explain why proceedings were dropped against the applicant. In any event, the applicant has always denied being present at the incident.)
16. Counsel submits that, other than the gravity of the offences themselves, there was nothing before the sentencing judge to cause him to reject the conclusions of the authors of the two reports, given that the probation officer was very experienced and had worked closely with the applicant, and in the light of the applicant's clear progress since being remanded in custody. It is submitted that it is surprising that, in a case of this nature, the reports are suggesting that an indeterminate sentence should not be passed. That being the case, the court should pay particular attention to the content of the reports and rationale for the conclusions. A compelling reason for not imposing an indeterminate sentence is the applicant's youth, his subsequent development and maturing, set against the lack of pattern and escalation of offences of this nature. None of this was considered by the sentencing judge, it was submitted.

THE REPORTS BEFORE THE COURT

17. We turn first of all to consider the two reports before the sentencing judge.
18. The pre-sentence report, (whilst accepting that the nature and level of the seriousness of the offences committed, when the appellant was subject to an order, meant that the risk factors could be seen as representing a risk of harm to the public), noted the following matters in support of the conclusion that the criteria for dangerousness were not met:

i) that although there was an element of pre-planning, the circumstances indicate that the applicant had not thought through how events in fact would progress, because he had not sought to disguise himself, or shield his identity;

ii) the applicant has since come to terms with the verdict of the jury, accepting it and accepting that his reaction to the situation was excessive and inappropriate. His remorse is genuine;

iii) his response to the referral order for the drug matters was satisfactory, with the applicant engaging in offence-focussed reparative programmes;

iv) during his period on remand, he had achieved the highest level awarded to young people for positive behaviour, and had interacted well with staff and peers;

v) he has maintained a high level of behaviour and attainment in all the programmes and activities undertaken;

vi) he comes from a close and loving family and has demonstrated no aggression or violence towards family members;

vii) he does not have an entrenched pattern of offending, nor any previous offences for violence. A lack of maturity and insight combined with the influence of his peer group, (amongst which there are older criminally- minded members) may well be contributory factors in the offences. His youth means that he has yet to mature and his behaviour should not be seen as set or entrenched. He has shown that there is room for development and indeed he is developing;

viii) his behaviour at school has been challenging in the past, but he has subsequently taken responsibility for his actions and taken steps to address his offending.

19. In an addendum to the pre-sentence report, written after the preparation of the psychologist's report, the probation officer emphasised again the youth of the applicant; that there were clear signs that his behaviour was not entrenched; and that he was motivated to address change to avoid future offending.
20. The psychological report was prepared expressly to consider the issue of dangerousness.
21. Dealing with the issues of risk to others, and set against the background of the offences themselves Dr Sarkar set out the competing factors.
22. Risks militating against a finding of dangerousness:

i) since his expulsion from school, the applicant has not been involved in any fights or acts of violence – save the present offences;

ii) there is no history of violence or use of a weapon, nor a persistent pattern of offending. His record of fights at school's are no worse than those children in school with a similar student load. The fact that he had previously not been disciplined by the school in relation to his fighting is testament to this view;

iii) there is no history suggestive of conduct disorder and no history of organised or social truanting. His behaviour does not appear to stem from a set or entrenched criminality;

iv) reports from the teachers and parents who know the applicant well demonstrate no serious concerns. Particularly notable was the fact that the applicant's teacher had never considered the applicant to pose a danger to anyone;

v) there is reason to believe that he was impressionable and vulnerable to peer pressure;

vi) the offence was not committed under the influence of alcohol or mood- altering substances;

vii) the offence was not part of gang violence;

viii) the applicant has demonstrated remorse, and wished, if he were permitted, to write a letter of apology to the victim. His acceptance of the impact of the offence not only on himself but also on the victim is admirable for someone facing a harsh sentence;

ix) he is taking a positive attitude to his inevitable incarceration, seeing it as an opportunity to "clean up" his act, and his behaviour has been good during his detention;

x) the applicant has accepted that he had been disruptive in school and sometimes involved in fights, but this had to be seen in the context of the school he attended, which suffers from a high truancy and disturbance rate;

xi) he had absented himself from school regularly, but since his expulsion in 2006, he has progressed well on the home tuition programme;

xii) due to his character and personality and youth he should be amenable to remedial measures. He has shown that he is consistently able to accept certain boundaries and institutional rules, as well as a capacity to engage with positive figures in his life;

xiii) he has the support of a loving family and a committed youth offending team.

23. Factors indicating risk were:

i) Use of a weapon to hurt someone;

ii) Convictions for drug offences;

iii) Commission of the present offences when he was subject to a referral order.

24. This court has in front of it a report from the applicant's case worker at HMYOI Huntercombe. The report shows that he has been a model detainee, and is expressed in glowing terms. There is nothing to cause concern in this report. In summary, the material before this court as to the applicant's progress over the past 16 months since he has been on remand is very positive.

THE JUDGES APPROACH TO SENTENCE

25. In sentencing, the trial judge said as follows:

"Both attempted murder and possession of a firearm with intent to endanger life carry on conviction a maximum penalty of life imprisonment. Both are serious specified offences within the meaning of the Criminal Justice Act 2003, section 224. I am therefore required to consider whether you represent a significant danger to others. The circumstances of the two offences themselves, which I have just described, it seems to me are enough in themselves to justify the conclusion that you do pose a significant risk to the public. However, I am required to consider all that is known about you, and I therefore asked for a pre-sentence report, and then a report from a psychiatrist. I now have two reports from Peter Jamieson, dated 23 April and 18 June, and a psychiatric report from Dr Sameer Sarkar, dated 18 June. I also have a copy of the report of the principal to the governors of Geoffrey Chaucer Technology College, dated 27 April 2006, dealing with your permanent exclusion from school and the reasons for it.

I begin with your two convictions for simple possession of cannabis, and possession of cannabis with intent to supply, in 2007. I note the fact that you have those convictions, but they have no bearing on whether or not you are a danger to the public. I turn next to the school report. Your school report is a depressing one. There were instances of disruptive behaviour, rudeness to teachers, truancy and violence to at least one other pupil. The reasons for your permanent exclusion were being in possession of an offensive weapon, using that weapon to cause harm to another pupil, who was severely injured so that he required two major operations and is now partially sighted. There was a police investigation. The prosecution sought to adduce those facts in the trial, but since you were never convicted I refused to allow those facts to be admitted. I did however allow the jury to know that you had been permanently excluded from school. I cannot, and do not, treat you as someone who has been found guilty of wounding, because you have not, but equally I cannot ignore the fact that you were permanent excluded from school, and that that exclusion was upheld by the governors. Ironically, you did do better once you were taught at home, and you are apparently doing well in custody, and the one ray of hope for you in the future is the acceptance by you that although you are bound to get a long sentence, you will be happy to use your time in prison constructively, and you have apparently already started to do so.

Both Peter Jamieson and Doctor Sarkar have reached the conclusion that you do not pose a significant risk of harm to the public, and Mr Smith, in an eloquent plea on your behalf, urges that I should pass a determinate sentence. I note, however, that Doctor Sarkar says at page 12 of his report, "If adolescence is just a phase during which most children will participate in repeated antisocial acts, then there is good possibility that in good time this phase will pass." But he continues, "Sadly, there is no way to predict which way a particular child will go, and it is therefore the prerogative of the juvenile justice system to determine a just outcome rather than by psychiatric professionals." At page 13 of his report he says, dealing with the risk to others:

""The court will be primarily concerned with risk Mr W poses to others. Broadly, it will include risk to the general public. Although Mr W has history of two violent offences, in actual fact the violence is not a persistent or common theme in his presentation. I say this with the knowledge that Mr William's current conviction is for attempted murder and use of a firearm. This is indeed a most serious offence, especially from someone so young, and the court will justifiably look at the public protection aspect of the disposal. It would appear that this risk may be somewhat modified by the following factors in his history", and he then goes on to say what those are.

I am afraid that the phrase "this risk may be somewhat modified" gives little comfort to the general public" and does not allay my fears. Applying, as I must, section 226-1 of the Criminal Justice Act 2003, I am of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by you of further specified offences. I consider that an extended sentence under section 228 would not be adequate for the purposes of protecting the public, and by section 226-3 I therefore must impose an indeterminate sentence for public protection.""

DISCUSSION AND DECISION

26. The guidance in relation to the sentencing of young offenders can be found in many different documents, all available to the courts. It is only necessary to set out the principles which can be distilled from them:

i) youth has a significant impact on culpability, both in relation to type and length of sentence;

ii) guidance also makes it clear that it is also necessary to bear in mind that, within a significantly shorter time than adults, young offenders may change and develop. This is highly pertinent when considering risk in relation to future conduct.

iii) With regard to indeterminate sentences, the Youth Justice Board has recommended that in the case of youths, save in certain limited circumstances, a finding of dangerousness should not be made if the assessment is only a high risk, as opposed to a very high risk, of causing serious harm.

27. We make the following observations in the light of the judge's sentencing remarks.
28. Whilst the court is not bound by the assessments made in the reports (and the psychologist's report acknowledges as much), yet if the court asks for the assistance of experts, and, having read their assessments, is minded to reject their conclusions, the court should set out in some detail the reasons for so doing. This was not done in this case.
29. The extracts quoted by the judge from the psychologist's report were taken out of their full context. The judge quoted part of the psychologist's comments, but then failed to deal with the factors upon which the psychologist relied when coming to his conclusion. Additionally, the psychologist's remarks were made in the context of his having taken into account the school incident, an incident which the judge had excluded from his consideration.
30. There was no consideration at all of the important principles guiding the sentencing of young offenders. This applicant was still 15 when he was sentenced and was only 14 when he committed the offences. This is the most important issue with which the judge failed to deal. As has already been noted, as a matter of general principle an offender of this applicant's age is far more susceptible to change than an adult, and thus, if influenced to the good, more likely to reform. The rationale underlying the guidance from the Youth Justice Board, is that an indeterminate sentence, such as Detention for Public Protection, is unnecessary save in cases of very grave risk, since the likelihood of change is inherent in youth. The evidence of change in this case, was all one way – to the good. The applicant has already shown that he is susceptible to change for the better. He has shown a determination to accept the verdict of the jury and the sentence of the court, and also to make the most constructive use of what will be a lengthy time in detention. The very objective that the indeterminate sentence was designed to achieve, namely the reduction of risk and danger, is being achieved.
31. The judge indicated that he could not ignore the fact of the applicant's expulsion from school and yet, in the same breath, he indicated that he was not treating the applicant as guilty of the incident alleged to have taken place at the school. Given, that the main reason for the expulsion was the untested and unproven allegation made against the applicant, which was denied by him, it was inappropriate for the judge to place any weight on the fact of expulsion. The other reason for expulsion was the applicant's poor attendance and performance record, but it is to be noted that once expelled and receiving private tuition, this applicant has blossomed academically.
32. The judge passed an indeterminate sentence based on the seriousness of the offences. In principle, there is nothing objectionable about that. Offences of this nature committed by one so young are bound to cause deep concern, in particular as to the likelihood of repetition. That there is a risk of repetition of similar offences is obvious, given the applicant's capacity to commit the offences in the first place. Such a grave offence would, without doubt, normally justify the imposition of an indeterminate sentence.
33. The key issue in this case is, whether there is a significant risk of serious harm in the light of the substantial mitigating factors, in particular, the applicant's youth and the strong evidence of reform. The Crown drew the court's attention to the pre-meditated aspect of the case. It is true that this offence can be viewed as pre-meditated. However there is one piece of evidence, not mentioned by the judge, which tends to support the findings of the authors of the two reports that the applicant was likely to be under pressure from older peers, and which also militates against the inference drawn by the judge that this was a pre-meditated attack carried out by a ruthless cold-blooded killer. That is the evidence of the victim's partner, who described the appellant as appearing "frightened and nervous".
34. Having relied on the nature of the offences, the sentencing judge made no clear analysis as to why all the positive features set out in the reports and in mitigation could not, and had not, reduced the risk sufficiently so as to avoid the imposition of an indeterminate sentence.
35. We conclude that there was insufficient material before the court to justify the rejection of the findings in the two reports in relation to dangerousness. Both reports, set against the background of the seriousness of the offences had emphasised, amongst other things, the importance of the applicant's youth at the time of the offences - his immaturity, his vulnerability to peer pressure at the time, and his inability then to fully understand the impact of his actions. The court has, of course, to be astute to the possibility that those involved in assessing the applicant might lose objectivity and take too favourable a view, given that the applicant is personable. If the favourable evidence in front of the court consisted of only one person taking such a view, then the court would incline to caution. Here, however, there are reports from a number of different sources which attest to the applicant's behaviour. It is difficult for the court to dismiss such findings. There is significant evidence of the applicant's change of attitude and increased maturity, evidence which supports the approach advocated in relation to the sentencing of young offenders.
36. Had the sentencing judge been able to take into account the alleged incident at the school, which, rightly he did not, then our decision may well have been different. However, based on the offences alone, and set against all the features militating against a finding of dangerousness, we are persuaded that an indeterminate sentence was not appropriate.
37. We now turn to the question of length.
38. The approach taken by the sentencing judge was that set out in the case of Ford 2006 1 CAR(S) 36, [2005] EWCA Crim 1358, which indicated that in calculating the appropriate term for attempted murder consideration is to be given to what the minimum term would be, had the attempt been successful, and then to calculate a term which is approximately half the minimum term. The judge took 12 years as the minimum term, which represents a 24 year determinate sentence. He halved it, making a determinate sentence of 12 years, and then imposed the indeterminate sentence which was 6 years – i.e. half the minimum term for murder. The notional minimum term of 12 years was applied because the applicant was under 18 when he committed the offence.
39. Aggravating and mitigating factors then come into play. Counsel relies on the applicant's age at the time of the offences, he being 14 is an additional mitigating factor. It is submitted, therefore, that the judge should have reduced the 12 year minimum period because of the applicant's youth at the time, and in view of the other mitigation, despite the aggravating feature of the use of a firearm. However, the judge, when sentencing, made no findings of aggravating or mitigating circumstances.
40. The single judge rightly pointed out, however, that the starting point for an adult who had been convicted of murder with the use of a firearm would have been 30 years. Obviously, in the case of a youth, it would be significantly lower, but this is nevertheless an important factor which has to be taken into account.
41. In our judgement the sentence of 12 years, which is what it amounts to without the indeterminate sentence coming into play, cannot be said to be manifestly excessive, taking into account the mitigation, and also the seriously aggravating feature of the use of a firearm. We find no merit therefore in this aspect of the appeal. The appeal is allowed to this limited extent – the sentence of Detention for Public Protection will be quashed, and a sentence of detention of 12 years under section 91 will be substituted. Time spent on remand will count towards that sentence.