England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		11 February 2010

THE LORD CHIEF JUSTICE:

1. This case is both an application for leave to appeal against sentence which has been referred to the full court by the Registrar, and an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer the sentence to this court on the ground that it is unduly lenient.
2. On 19 October 2009, in the Crown Court at Teesside, Kenneth Blight was sentenced by His Honour Judge Fox QC to two years' imprisonment suspended for two years, with a two year supervision order, following his guilty plea to an offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861.
3. That sentence is unlawful. At the time it was passed, it was not available to the judge. The maximum sentence which as a matter of law can be suspended is twelve months' imprisonment. That forms the basis of the application for leave to appeal against sentence. We grant leave. We shall return to the appeal against sentence in its proper context after reviewing the Reference.
4. The offender is Kenneth Blight. He is 51 years old and a man of previous good character. He lived with his partner and her 19 year old son, Andrew Nelson. It was he who, having been the assailant, became the victim.
5. In summary the facts are these. On the evening of 30 May 2009 Andrew Nelson had been drinking and smoking cannabis. He was at home in the conservatory with a friend when he heard the offender make a complaint about the fact that he had moved back into the house. He was inclined to come and go. A heated exchange between them followed. Andrew Nelson grabbed hold of the offender around the throat and pushed him back against the kitchen door. His friend and his mother separated the two men. Andrew Nelson picked up a small axe which he had earlier used to cut wood. With the blunt side he twice hit the offender heavily to the leg causing "massive bruises". To calm things down, Nelson's mother pulled the offender into the kitchen. Andrew Nelson, who was still in possession of the axe, went off into the small garden at the rear of the house. He goaded the offender to come outside. He issued serious threats. He began to kick the kitchen door. Eventually the offender took hold of a knife from the kitchen drawer and went out into the garden to encourage him to drop the axe. In this process the offender sustained a cut to his elbow and defensive cuts to his fingers. The Crown alleged that, thereafter, the offender chased the victim in the garden (although the offender said that he could not remember doing so). When the victim was by the fence, the offender stabbed him a single blow in the region of the neck and chest. The injury severed several major blood vessels.
6. The facts in more detail follow. Andrew Nelson had returned to live with his mother in the property occupied by his mother and the offender. The evidence was that he used cannabis. He returned to live with his mother and the offender because he was in debt and was being pursued for money in relation to the purchase and sale of drugs.
7. The relationship between the offender and the victim was undoubtedly strained. The offender did not like Andrew Nelson's association with drugs or the potential consequences of the fact that he was indebted.
8. On 30 May the victim and his friend had been out. They finished off some cider and shared a cannabis joint. Both were a little drunk. The friend described Andrew Nelson as inclined to go stupid when drunk. "He's more than a nuisance when he has had a drink" and "starts fighting with people". They left the home to buy some more cider. When they went out, a car pulled up containing three men. Andrew Nelson immediately ran off. One of those inside the car left it and said to Andrew Nelson's friend, "Do you want a go?" and chased him. The friend ran back to the offender's home, where he found the victim in the conservatory.
9. All this had been seen by the offender. He was concerned about what had happened. He said that he did not want to have people kicking in his door or putting in his windows, looking for Andrew. He seemed to be "squaring up" to Andrew Nelson. The friend said that it was Andrew's fault that it had all started because he was drunk. Be that as it may, they were all words. The offender was fully entitled to complain and expostulate about the potential for trouble in his home if Andrew Nelson continued to involve himself in drugs.
10. The first violence was offered by Andrew Nelson. He grabbed the offender around the throat with both hands and pushed him against the door which led from the conservatory to the kitchen. By now the two men were screaming at each other. Andrew Nelson's friend tried to prevent them from fighting. Eventually he pulled Andrew Nelson away as he (Andrew Nelson) pushed the offender to the floor. Andrew Nelson then took a small axe from a bag in the conservatory. It was an ordinary axe which belonged to the offender. He had lent it to Andrew Nelson so that he and his friend could chop wood for a bonfire they were planning. Armed with the axe, Andrew Nelson struck the offender twice on the leg with the blunt side of the axe which caused "massive bruising". Andrew Nelson's mother pulled the offender into the kitchen. The kitchen door was closed but not locked.
11. Andrew Nelson was "really emotional". He screamed at the offender to "get outside", to "come into the garden", where he threatened to punch his head in. A neighbour heard Andrew Nelson say words to the effect of, "Get out here, you bastard, I'm going to chop your head off" and "I'm going to rip your head off, you baldy headed bastard". The victim went into the conservatory and from there began to kick in the kitchen door. He returned to the garden with the axe, which he had carried throughout. He was screaming, goading and taunting the offender to go out and fight him.
12. The offender grabbed a knife from the kitchen drawer and went into the garden towards the victim. At this stage his intention was to disarm the victim by threatening him with the knife. According to the offender's account, recorded by the author of the pre-sentence report, the kitchen door had clear glass panels. He was fearful for his safety. He could see and hear Andrew Nelson through it. He also heard him tell his mother to "get rid of him", otherwise he (Andrew Nelson) would kill the offender. The offender was asked why he had not simply locked the patio door and called the police. The offender said that at that time he genuinely believed that Andrew Nelson was prepared to use the axe either against him or to get to him. That was why he went out into the garden to persuade him to drop the axe. In the garden Andrew Nelson swung the axe about. There is no doubt that he struck the offender with it, cutting his elbow and injuring his hands -- plainly defensive injuries. The offender swung out at Andrew Nelson and caught him with a single blow with the kitchen knife in the area of the chest and neck.
13. There was some evidence that the offender had chased Andrew Nelson before the stabbing occurred, although the offender asserted that he had no recollection of that. He also asserted that at the time when he swung out in the direction of Andrew Nelson he had forgotten that he had a knife in his hand. Andrew Nelson's friend did not see the stabbing but suddenly saw blood spurting from the victim who ran past shouting at him to call an ambulance. He ran to the front of the house and into the garden of a neighbour, where he fell to the ground. He had suffered a very serious injury and was bleeding profusely.
14. The offender, still carrying the knife which was covered in blood, left the house. He said that Andrew Nelson had started it all. When a neighbour told him to drop the knife, he did so. He pointed to an injury on his arm. He then returned into the house.
15. The police were called. Assistance was given to Andrew Nelson and he was taken to hospital. He was found to have a large haematoma to his neck and paralysis of his left arm. Surgical intervention was needed. The stab wound was at the junction of the neck and chest, just to the right of the mid-line. The wound had passed from right to left and had divided some major blood vessels to his head and left arm. The internal damage suggested that the blade had penetrated to at least 10-15cm. The victim had lost a vast amount of blood. The surgery required was "exceptionally complex and high risk". It was performed through the night by the surgeons in the hospital. There was a slow recovery. Complications followed. Andrew Nelson was released from hospital on 29 July 2009. His left arm was saved, although it was felt that he would be left with some degree of disability in his left hand. That, as the latest victim impact statement shows, has occurred. There is continuing disability in the left hand. The victim impact statement dated 10 February 2010 makes it clear that the injuries sustained by the victim were indeed serious.
16. The police found a knife with an 8 inch blade in the gutter at the bottom of the drive of the offender's house. The offender was arrested on suspicion of attempted murder and cautioned. He replied, "He came at me with an axe". He was taken to the police station. When he was interviewed he admitted that he had stabbed Andrew Nelson but said that he had forgotten about the knife in his hand. He thought he was just hitting him. He said that Andrew Nelson had lied about the reason he had returned home, asserting that it had followed a row with his girlfriend when the truth was that he was hiding from drug dealers in the locality. He told the police that he had begun to receive calls at the house from dealers and so he had confronted Andrew Nelson. He told him that he would have to leave. At one stage he told the victim no longer to contribute to the expenses of the household but to pay the dealers from the benefit money he received and so to discharge his debts, but the victim had not done so. The offender had noticed the car with the three young men inside. They were looking for Andrew Nelson. It was then that he told him that he would have to leave because he did not want dealers kicking in his door. He explained to the police what had happened. There is no great difference in the account, save that his version was that Andrew Nelson had picked up the axe and had shouted and screamed that he would "kill the bastard", and that eventually he (the offender) had picked up the knife to warn off the victim and to get the axe away from him.
17. A medical report described the offender's wounds as relatively minor. Compared with those sustained by the victim, that was undoubtedly true.
18. The offender was charged with attempted murder and wounding with intent to do grievous bodily harm. He entered not guilty pleas. The case was set down for trial on 19 October 2009, when he pleaded guilty to section 18 wounding with intent. By that date he had already been in custody for four-and-a-half months.
19. There was no pre-sentence report. One of the offender's former long-standing partners testified that he was a man of mild nature, not violent and that this incident was out of character.
20. In a detailed pre-appeal report, having explored the offender's lack of previous convictions, and taking into account his good character and the likelihood of such matters recurring, the author recommended an alternative to an immediate custodial sentence.
21. Before the offender pleaded guilty in the Crown Court, counsel for both sides saw Judge Fox in his chambers. The defence sought to enquire whether the judge considered that the case fell outside the guidelines of the Sentencing Guidelines Council. The judge was told that the account given by the offender was "virtually" accepted by the prosecution. It was suggested to the judge that, although the offence involved a knife, it was an exceptional matter otherwise. The judge said that he had a "pretty good flavour of the case". Counsel for the prosecution said that this was a very unusual case as the victim had picked up a weapon and invited the offender out and then "in a momentary moment of madness he uses the knife". The judge asked whether any view could be expressed about the possibility of an Attorney General's Reference if he concluded that the circumstances were so exceptional that in the current climate a suspended sentence might be imposed. Following an investigation, prosecution counsel told the judge that, as a matter of policy, the Crown would never give any indication which might suggest that a sentence would not be referred. However, the Crown also told the judge that the defence basis of plea was accepted, which has effectively been narrated in the course of this judgment. The judge said that what struck him about the case was that

"insofar as there was or is an acceptance of an intent to do really serious bodily injury on the part of the [offender], it was an intent formed in the most anguishing of circumstances. It is one thing to form an intent to do someone serious harm when you are the aggressor from the beginning, or with a cool head, but it is another thing entirely when you have been subjected to this sort of thing".

22. When he came to pass sentence in open court, the judge effectively repeated what he had said. He said that in normal circumstances an offence involving the use of a knife as a weapon almost invariably carried a substantial sentence of imprisonment, but he took the view that the case disclosed "a desperate situation". The offender was fearful for his life. Initially when he picked up the knife, all he had in mind was to defend himself. It was only after he had sustained the heavy blows from Andrew Nelson, that the offender had retaliated "momentarily and in the acute anxiety of the moment". The judge examined the intention to do really serious injury and he considered that there had been "the most extenuating and exceptional circumstances" which in his judgment took the case outside any guideline. He imposed the sentence to which we have referred and which is the subject of the appeal.
23. Later under the "slip rule" counsel for both sides sought to persuade the judge that his powers did not extend to the imposition of a suspended sentence of two years' imprisonment. The judge declined to alter the sentence that he had imposed, but he indicated that if it was necessary and required by statute he would indeed do so.
24. We have given a lengthy summary of the facts of this case because of the serious nature of the offence of wounding with intent and because of the serious injuries sustained by the victim. However, standing back, this case did indeed arise in very unusual circumstances. It required the sentencing judge to consider and address the human realities behind it. The offender was a decent, middle-aged man in his own home, goaded beyond endurance by an attack on him with an axe by a much younger man. He was then subjected to violence and put in fear of yet more violence. With all that, he picked up a knife and went into the garden where he tried to grab hold of the axe which the victim had carried throughout. Then, under serious provocation, the offender stabbed the victim once. It was a serious blow and it caused grave injuries. We do not underestimate the injuries or their long-term consequences. It is also clear, as this court has repeated time and time again, that an offender who uses a knife to inflict serious injuries must normally expect a sentence measured in years. This was not an ordinary case. It was an exceptional one. Sentencing guidelines do not address cases of such exceptionality. The man who used the knife was in his own house and garden. He was not the victim of a burglary by a stranger, but he was undoubtedly a man who had been attacked in his own home. He was the victim of serious, and more seriously threatened, violence. He faced and was injured by an axe. He wanted to disarm the holder of the axe. It was not until all that had happened and he had been hugely goaded and provoked that he picked up a knife. At the time when he did so, at least in part, he acted in the hope of ensuring a peaceful end to what had become an extremely dangerous and frightening situation. He had served four-and-a-half months' imprisonment (the equivalent of a nine month term of imprisonment).
25. In our judgment this was a humane and justifiably merciful sentence and one properly within the sentencing range appropriate in all the circumstances of this case.
26. In these circumstances the application by the Attorney General for leave to refer this sentence is refused. The appeal against sentence will be allowed so as to reduce the sentence to the maximum permissible if the sentence is to be suspended. It will therefore be twelve months' imprisonment rather than two years, to be suspended for two years. The remaining parts of the order will remain unchanged.

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