England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 14 June 2013

1. MR JUSTICE EDWARDS-STUART: On 6th July 2012 at the Crown Court at Sheffield, the three appellants were convicted of two offences of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 30th July 2012 they were sentenced on each count to 15 years' detention, less 27 days ordered to count towards sentence. In the case of Jordan and Alquebeiai, who were under 18 when they were sentenced, the sentence was made pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Barnes was 18 by the time of conviction. Each of the appellants appeals against his sentence with the permission of the single judge.

The facts

2. In early hours of 26th June 2011 Paul Marrison and Daniel Mace, together with his girlfriend Rebecca Brock, were walking through Sheffield City Centre on their way home after an evening out. They had been drinking but were not drunk and were minding their own business when they came upon the appellants and some of their friends. Daniel Mace described them as looking like "American-style gang culture". Accordingly he and his two friends wanted to avoid any contact with the group because they looked very intimidating.
3. CCTV footage showed that in the 10 minutes or so before that encounter, the appellant Alquebeiai had been involved in a dispute with a number of young women, during which he is said to have struck one of them in the face. That argument was continuing shortly before Daniel Mace and his friends arrived in the area.
4. At some point during that argument, someone in the appellants' group said to a man called Ashley Martin: "I'll shank you" or "You'll get shanked up", which Mr Martin understood to mean that the man was threatening to stab him. Fortunately a friend of Mr Martin's dragged him away as the appellants' group began to surround him. His friend heard the threat to "shank" Martin and took it seriously.
5. The appellants' gang was looking for trouble. The judge found that they decided that the next young man to pass by, whoever he was, would be attacked and stabbed. That man was Mr Marrison. As he and his two friends approached the gang, one of them felled him with a punch or a head butt. Daniel Mace, with considerable courage, immediately went to Mr Marrison's rescue, but he too was quickly overpowered and also knocked to the ground. Whilst the two men were on the ground attempting to protect themselves, they were callously and repeatedly stabbed in their backs. Mr Marrison was stabbed twice, one of the stab wounds penetrating his spleen. He required oxygen and fluid resuscitation and his spleen had to be removed subsequently. He has suffered serious ongoing affects.
6. Mr Mace was even more unlucky. He was stabbed in the back eight times. Both of his lungs collapsed. In addition he had abdominal and kidney trauma. He required urgent resuscitation and abdominal surgery. He was left scarred for life, together with other serious ongoing effects that are unlikely to improve.
7. Rebecca Brock gave a vivid description of the gang. She said:

"They were kicking and punching Mace really viciously, kicking all around him, but they could not get at his head because he was in a foetal position. The sixth one [by which she meant Barnes] was standing closest to Danny's head. His face was screwed up. There was pure evil on his face. He was kicking and kicking at him. He was the last to leave. The demeanour of the other five was vicious, horrible, just unnecessarily horrible."

CCTV cameras showed them walking off after the incident and standing in the shadows nearby, even after the police arrived. Some of them exchanged clothes and they then went about calmly trying to call a taxi. They appeared to have no fear of being confronted. They had taken their knives with them. Two knives were subsequently recovered by the police from roadside gratings on the route that the gang had taken but it was never established whether or not those knives were the knives used in the attack. When the appellants were arrested they made no reply throughout. Each of them gave evidence on his own behalf at the trial, but the judge found that they had lied on oath. Each of them told the probation officer preparing his pre-sentence report that he had not been responsible for the attack on either Mr Mace or Mr Marrison.

The sentence

8. The judge's sentencing remarks were detailed and carefully structured. In order to understand the issues raised by these appeals it is necessary to quote from them at some length. The judge began by summarising the facts in much the same terms as we have already set them out. In relation to the overall nature of the attack, he said this:

"I sentence each of you on the basis of your involvement in the joint enterprise and I am satisfied on the evidence so that I am sure that each of you knew that knives were to be used in these attacks. The evidence of Garradargy would entitle me to conclude that you, Alquebeiai, and you, Reece Barnes, were the two who used the knives but I acknowledge that his identification of the roles that you played was not by any means certain and he never said it was and, in the event, I find that it makes no real difference to the sentence whether you actually used the knives or involved yourselves in the joint enterprise as alleged.

I recall how the case was left to the jury and it was left to the jury that the Crown's case against all five of the defendants, against you three who were convicted, is that at least ... you all acted together, at least two as the stabbers; the others as head butters, kickers and punchers, knowing that at least one of your number might use a knife to stab during the attacks or realising that at least one was so using a knife during the attacks and nonetheless continued to take part.

I am satisfied on all the evidence that you all knew precisely what was going to happen and that knives were going to be used."

He then referred to the sentencing guidelines and said this:

"In all three of your cases, I have been assisted by the sentencing guidelines. These plainly were category 1 offences as they involved serious injury incurred during a sustained assault on the victim, the use of knives and, in my view, a significant degree of premeditation in that once this mindless violence commenced, knives were very quickly instantly used in circumstances where there was absolutely no other reason than to inflict maximum injury on the victim.

The aggravating factors common to all three of your cases are the following: the location and timing of the offences, this being city centre violence in a busy area at a busy time of night, regardless of all those passing by, all of whom were no doubt, as Mr Garradargy was, terrified by what they were witnessing; the ongoing effect on the victims is an aggravating factor; the presence of others during the attacks, particularly Rebecca Brock, Mr Mace's partner, witnessing it all; concealment of the knives, whether down the public drains or elsewhere; commission of the offence whilst under the influence of alcohol."

The judge then summarised the antecedents of each applicant. In relation to Mr Alquebeiai he said that he had previous convictions that were plainly relevant and was at the time subject to a rehabilitation order. He said this because the offences were principally ones of disorderly or threatening behaviour.

9. In relation to Mr Barnes, he said that he also had relevant convictions, particularly a conviction for robbery arising from an incident which occurred in February 2007 when a group of which he was a member threatened to stab one of three 14 year old complainants unless he handed over his mobile phone. Barnes admitted that the robbery was premeditated and that he knew there was a knife. The judge said that he was not satisfied that this incident could have been deployed as bad character evidence at the trial, but he considered it to be plainly relevant to sentence. Nevertheless, he said that he took account of the fact that it was some years ago and of Barnes's age at the time.
10. Mr Jordan had no previous convictions but he did have reprimands or cautions in relation to two incidents involving assault and one of robbery. However in relation to Jordan, the judge also said this earlier in his sentencing remarks:

"It is of note that that incident and the subsequent attack took place in a blind spot on the CCTV and it is absolutely plain to me that that was something you, Sheldon Jordan, were acutely aware of. You were exposed in cross-examination by Mr West for the prosecution to have been aware of the location of the CCTV cameras and to be showing at least one of your gang the same."

The judge then returned to the important question of the appellants' ages. He said this:

"I have finally, of course, had anxious regard to the sentencing guideline overarching principles sentencing youths for you, Alquebeiai and Jordan, were 16 at the time of the offences and are 17 now. You, Reece Barnes, were 17 and are 18 now.

You, Alquebeiai, and Sheldon Jordan are only two months or so from your 18th birthday. I have been able to assess your maturity rather than your chronological age from the evidence that you gave; from all of the evidence which I heard about you; from your conduct throughout the trial. You, Yousef Alquebeiai, made an application to give your evidence via the TV link but you seemed to me to do absolutely fine whether you gave your evidence in court and I made a particular note that when you were being questioned by your own barrister, you knew the meaning of the word 'altercation'. Your conduct on the night, out at two in the morning drinking alcohol, hitting a woman, sticking with your mates, is relevant. Your record, of course, is highly relevant.

In your case, Sheldon Jordan, the task is easier. As I have said, despite your age, you were, in my opinion, exposed by a correct analysis of the CCTV to be playing a leading role in the group throughout and to be the one bringing CCTV to the attention of the others in the group, and I saw absolutely nothing in your testimony to suggest to me that you were anything other than a person mature beyond his chronological age. After the event, it was you who was leading the group once again, just as you had before; this time, you were leading them to try and get in the taxis to leave the area and avoid the police that were so nearby.

The guidelines suggest that I should consider a starting point from a half to three quarters of that of an adult offender but it does so in these terms: it may be appropriate depending upon maturity. I am absolutely satisfied that no reduction of the starting point is required or appropriate by reason of the matters that I have referred to."

11. The judge then returned to the provisions relating to detention for public protection and said that in the light of the appellants' ages it was inappropriate to consider their application in this case. The judge then said that his sentence would take into account the totality principle because:

"... the critical thing to remember here is that there are two victims, two offences. It is difficult, in my view, to envisage many graver cases of wounding with intent coming before the courts than the repeated stabbing of two men in their backs when they are lying defenceless on the ground. This was an attack, I remind myself, deliberately carried out out of view of the CCTV cameras. You all knew what you were about that night."

Finally the judge set out his conclusions in these terms:

"The range set down by the guidelines is 9 to 16 years for a single offence. I make no secret of the fact that this was, in my view, brutal gangland type violence in the centre of Sheffield and deterrent sentences are required to send the message out to the public that it will not be tolerated and I therefore deliberately impose upon you the maximum sentences which I feel the guidelines permit me to impose upon you. These sentences are tempered only by your relatively young ages. I see no reason to distinguish between the three of you because although Sheldon Jordan's record is less bad than the others, he had a leading role, as I have said.

Your ages are very close. The sentence that I impose upon all three of you concurrently on both counts, on you Alquebeiai and you Sheldon Jordan, is 15 years under section 91, and on you, Reece Barnes, 15 years in a young offender institution."

The grounds of appeal

12. In the case of Jordan there are effectively three grounds.

1. The judge indicated that he would sentence all three appellants on a joint enterprise basis and would not sentence them in respect of individual roles within it as portrayed by the Crown. The written grounds on behalf of Mr Jordan then say this:

"The learned judge emphasised on more than one occasion whilst sentencing that [Jordan] had been exposed as the 'leader' under cross-examination -- 'leading his group to a blind spot'. This assertion by the Crown was never opened nor put to prosecution witnesses, co-defendants or supported by any technical/expert evidence as to blind spots. The applicant Jordan Sheldon was the last defendant to give evidence and the only opportunity the defence had to counter this late assertion by the Crown at trial was by denial under cross-examination and closing speech."

We pause at this point to observe what the judge said in the passage which we have already quoted, which was that Jordan was "exposed in cross-examination" to have been aware of the location of the CCTV cameras, not that he denied it. But that said, we understand that the underlying point being made was that it was wrong in principle for the judge to elevate Jordan's role in the joint enterprise to that of his co-accused who he said were the knife wielders.

2. The judge was wrong to apply the adult guideline and then to reject any discount for chronological age and he lost sight of section 44 of the Children and Young Persons Act 1933 to have regard to the welfare of a young person when imposing a sentence.

3. The starting point was too high, and insufficient account was taken of his age, lack of previous convictions and the fact that this would be his first custodial sentence.

13. In her oral submissions before us today, Miss Seabourne, who appeared on behalf of Mr Jordan, has made the following further points on behalf of her client. First, that he was not identified as a knife wielder and was the one appellant who had no previous convictions. She accepted the aggravating features identified by the judge meant that this was properly classified as a category 1 case. Second, the judge assessed maturity by reference to the way her client acted. But she pointed out that Mr Jordan had no previous court experience and so a discount for his age should have been applied. She made the point also that in two parts of the judge's sentencing remarks he made different points. We have mentioned them both already, but we will identify them again. The first part of his sentencing remarks was the point where he said that he was satisfied that no reduction of the starting point was required or appropriate by reason of the matters that he had referred to, and then a little later, he then said: "These sentences are tempered only by your relatively young ages." Miss Seabourne submits that that shows confusion in the judge's reasoning and supports the submission that no proper account was taken of their ages.
14. For Mr Barnes it was submitted that notwithstanding the aggravating features and that the offence clearly fell into category 1 of the guidelines, the sentence was manifestly excessive for an 18-year-old who was 17 at the time of the offence. Mr Button, who appeared on behalf of Mr Barnes today, adopted the points made by Seabourne.
15. In relation to Alquebeiai, the primary ground is that the judge misdirected himself in failing to mitigate the sentence on the basis of his age. In the written grounds it was submitted as follows:

"In view of the learned judge's justification as set out above as to his view of the appellant's 'actual' rather than 'chronological' age, it is necessary for me to set out that the learned judge apparently has forgotten that it was necessary to stop Crown counsel during his cross-examination of this applicant and firmly direct Crown counsel that in view of this applicant's stated difficulties he must not use any form of sarcasm and must ask one question at a time."

It was submitted also that Alquebeiai had autistic tendencies albeit that their effect upon his everyday life was very limited. But it was submitted by Mr Smith, who appeared for Mr Alquebeiai, that this was something that would have limited his ability to give evidence.

16. Mr Smith today has forcefully made the following further points on behalf of his client. First, he does not accept that 15 or 16 years would have been an appropriate starting point for an adult in the case of these offences. He submitted that this was a spontaneous offence and there were no other aggravating features beyond those that took it into category 1. Second, he said there was no sufficient discount for age, particularly of Mr Alquebeiai, which required the court to look critically at the judge's reasons in his sentencing remarks. He said that the judge conducted the trial and formed his own view of Mr Alquebeiai's effective age but his approach in doing so was flawed. First he understood, as we have already mentioned, his apparent understanding of the meaning of the word "altercation" but Mr Smith submits that he did not in fact know the meaning of the word, he merely understood the drift of what was being put to him by prosecuting counsel. Third, Mr Smith submits that there was no indication that the judge was going to rely on Mr Alquebeiai's demeanour in court in the way he did to reduce any reduction for his age to nil. He submitted that this was a course that should be taken only in the most exceptional case.

The appropriate sentence

17. It is not disputed by any of the appellants that these attacks fell within category 1 of the sentencing guidelines for this type of assault so that had they been adult offenders the starting point would have been 12 years' custody with a range of 9 to 16 years. We consider that in the circumstances of each of these offences a sentence of 15 or 16 years would have been the right sentence for an adult in the absence of any other mitigating factors.
18. At this point it is worth mentioning the precise ages of the appellants at the relevant times. Jordan and Alquebeiai, who coincidentally share the same birthday, were 16 years and 9 months old at the time of the incident and at the time of conviction they were therefore aged 17 years and 9 months. Barnes was just under 17 years 8 months at the time of the incident and was therefore aged 18 years 8 months at the time of conviction.
19. The definitive guideline overarching principles in sentencing youths states that:

"There is an expectation that, generally, a young person will be dealt with less severely than an adult offender, although this distinction diminishes as the offender approaches age 18 (subject to an assessment of maturity and criminal sophistication)."

The relevant part of paragraph 11.16 of the guideline is worth setting out in full. It reads as follows:

"Where the offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as chronological age. Where there is no offence specific guideline, it may be appropriate, depending on maturity, to consider a starting point from half to three quarters of that which would have been identified for an adult offender.

It will be particularly important to consider maturity when the court has to sentence more than one offender. When the offenders are of different ages, including when one or more is over 18, the court will also need to have proper regard to parity between their sentences.

The closer an offender was to age 18 when the offence was committed and the greater the maturity of the offender or the sophistication of the offence, the closer the starting point is likely to be to that appropriate for an adult. Some offenders will be extremely mature, more so than some offenders who are over 18, whilst others will be significantly less mature."

20. There can be no question but that the judge's description of these attacks as "brutal gangland type violence" was all too accurate. The appellants' ages apart, there were no potential mitigating features. It is clear that the appellants and other members of their group were out to intimidate other members of the public and, as this incident shows, their willingness to indulge in gratuitous and very serious violence was made only too clear.
21. The consequences for both of the victims, both physical and psychological, have been very severe and are ones that they will carry for the rest of their lives. In fact they came within an inch of losing their lives. Mr Mace was a keen footballer but will never be able to play any active sport again. Both of them have sustained significant financial losses as a result of their injuries. Both are deeply embarrassed by the scars they will bear for the rest of their lives, scars that are clearly visible when, for example, wearing swimming trunks. The judge carried out a careful balancing exercise when considering the relative culpability of each of these appellants. In spite of the submissions made on behalf of Jordan, we consider that the judge was fully entitled to take into account his role as shown on the CCTV cameras and to balance that against his lack of previous convictions. We can find no error of approach in the judge's assessment that the three appellants were equally culpable in respect of these horrific offences.
22. As to question of the account to be taken of their ages, the judge conducted the trial and was in a far better position than this court to form a view about the maturity of each of the appellants and his true culpability in comparison with a hypothetical 18 year old. The guideline relating to the age of offenders is just that, and a judge is at liberty to - and indeed must - form his own judgment. In this case, the judge gave his reasons for reaching the conclusions that he did. The judge clearly gave careful thought to the question of what reduction, if any, should be made in the light of the appellants' ages. We do not read the sentencing remarks as meaning that their ages were left wholly out of account: we have already referred to the passage in which the judge referred to the sentences being tempered by their relatively young ages. We read that remark to mean that he took into account their ages when fixing the overall sentence of 15 years for these two separate assaults.
23. The course that he took was, we accept, a very unusual one but in this very exceptional case we consider it was a course that he was entitled to take and we consider that it would not be right for this court to interfere - not having had the opportunity to see and observe these appellants during the course of this substantial trial.
24. Standing back and looking at the sentences as a whole, and bearing in mind that there were two separate victims, each of whom was very seriously injured, we consider that these sentences were not manifestly excessive, although we accept that they were severe. Offences of this type do not often come much worse than these savage and unprovoked attacks on two wholly innocent passers-by and we have not been persuaded that we should interfere with the sentences. Accordingly, these appeals must be dismissed.