England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		8 June 2018

LORD JUSTICE SIMON:

1. On 7 November 2017, in the Crown Court at Snaresbrook, the appellant changed his plea to guilty to the two offences with which he was charged. He was aged 17 years and 10 months at that time.
2. On 14 December, he was sentenced by His Honour Judge Del Fabbro as follows. On count 2, wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1961, an extended sentence of youth detention under section 226B of the Criminal Justice Act 2003 of 9 years and 10 months, consisting of a custodial term of 7 years and 10 months and a 2-year period of extended licence. On count 1, having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act, a concurrent term of 9 months' youth detention.
3. He appeals against those sentences with the leave of the single judge.
4. On 23 June 2017, the appellant went out in the afternoon on his bicycle to meet a friend. He had previously had some disagreement with Tyler Dawson, who was also aged 17. The appellant was armed with a flick knife. The prosecution evidence was that he was normally armed with a knife, a kitchen knife of some sort, but the knife on that day was a different kind of knife. It was disposed of at some point after the crime and never found.
5. CCTV evidence was before the court showing the appellant and his friends cycling around Dagenham. At around 3.30 pm, Tyler Dawson and his friend Ben O'Meara were walking in the same area. The prosecution were unable to say whether the appellant and his friend were specifically looking for Tyler Dawson, but they spotted him and Ben O'Meara at a distance as they were making their way to Ben O'Meara's father's house.
6. The appellant rode towards Tyler Dawson. He then dropped his bicycle, took out the flick knife and ran towards him. He stabbed him in the groin, causing catastrophic injury, leaving him bleeding uncontrollably and causing him to go into cardiac arrest.
7. Ben O'Meara took him to his father's home. They put him into the bath and phoned the emergency services, alerting them to the very serious injury.
8. The stabbing caused a cut to the right leg artery in his lower abdomen and a wound to his main abdominal artery, the abdominal aorta, and to his small bowel. The injury to the abdominal aorta was repaired, as was the injury to the small bowel. Although he received expert surgical treatment for the damage to his arterial system, ultimately the surgeons had to amputate his right leg above the knee. He was in intensive case for 4 weeks. The danger that he was in and the steps taken by the two consultant vascular surgeons to save his life are described in witness statements. He was plainly very lucky to survive.
9. The pre-sentence report recorded that the appellant was known to the Youth Offending Service in Barking and Dagenham as he was made subject to a triage out-of-court disposal for possessing cannabis in 2016. At paragraph 3.5, the writer of the report said this:

Whilst discussing the offence, impact of the offence, on the victim, on Ce-Jay [that is to say the appellant], his family and on the community at large, Ce-Jay displayed remorse for the victim by stating that he seriously regrets his actions and that he did not intend to cause such injuries to him as 'he would not wish the victim's injuries on his worst enemy'. Ce-Jay continued that he only learnt of the full extent of the injuries sustained a few weeks prior to his trial and that since then, the offence constantly plays over in his mind.

10. The report contained an unrealistic recommendation of a 3-year youth rehabilitation order with intensive surveillance and supervision. We will return later to another aspect dealt with in that report.
11. The sentencing judge had seen, as has this court, two victim personal statements. The first from Tyler Dawson. This describes in direct and moving terms the devastation caused to this young man from the attack and the amputation of his right leg, his worries for his future happiness and wellbeing, his reliance on others and his anxiety and fears of another attack. The second is from Martin O'Meara, the father of Ben. This describes the impact on Ben of the assault on his friend Tyler. If any further evidence were required of the harmful effect of the carrying and use of knives on the street it can be seen clearly in these statements.
12. There was a basis of plea which described a history of bad feeling between the appellant and Tyler Dawson. It was said that they were involved in an argument a few days before the offence, and Tyler Dawson was said to have produced a gun in a threatening manner. The appellant believed it to be genuine and reported it to his father, David Bowden, who told the police after the appellant was arrested. On 23 June 2017, the appellant saw Tyler Dawson and Ben O'Meara by chance and began to argue with Tyler Dawson. He believed Tyler Dawson was in possession of a firearm produced days earlier which he carried in his man bag. The appellant believed he would use it. He produced a knife that he had in his pocket and in a reckless manner swung it toward Tyler Dawson, stabbing him once. He did not foresee or intend the injuries caused. He believed Tyler Dawson had been stabbed in the leg and was not so seriously hurt.
13. There had been discussions between the prosecution and defence on a previous occasion about the basis of plea, which was only in part accepted. There were some elements which were not accepted by the prosecution, particularly the assertion that when they had met on a previous occasion the victim used an imitation or air gun or something to threaten the appellant. Likewise, the explanation that it was a reckless rather than intentional act. It was, said the prosecution, a deliberate stab, the ferocity of the swing causing the extensive damage.
14. In passing sentence, the judge said that the appellant was 17 years and 11 months old at the date of sentence. He had pleaded late to an offence committed when he was 17 having armed himself with a flick knife. He had claimed that he was in fear of being bullied or attacked and that he had it with him for protection.
15. At around 3.30 pm and in broad daylight with members of the public walking by, he encountered his victim and changed his life forever. The appellant became the aggressor when he confronted him. The victim too was aged 17 and they both had companions with them. In a moment of calculated intent the appellant stabbed him without hesitation causing a deep penetrating wound which reflected the force with which he wielded that weapon.
16. The judge then described the effect of the crime on the victim in terms of his immediate injuries and the amputation of his leg above the knee. The appellant had to understand that he came within a hair's breadth of taking another person's life. The judge referred to Tyler Dawson's victim personal statement and his love of playing football and riding his bicycle every day. All this had now gone.
17. The judge noted that the appellant's age at the date of conviction had to be taken into account in assessing the appropriate sentence. In his view, the sentence was so serious that it triggered section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
18. The judge then went on to consider whether the appellant was a dangerous offender for the purposes of the Criminal Justice Act 2003, whether there was a significant risk of serious harm to members of the public from the commission of further offences by the appellant. The court said this:

In my judgment, and I have had careful regard to this point, I have come to the conclusion that you do represent such a danger. I have particular regard to your conduct after this incident. Miss Power urges on me that this was mere immaturity. I do not accept that. For a 17-and-a-half-year-old boy, even a 17-year-old boy, who has just stabbed another person with a flick knife, knowing that you have inflicted injury, the manner in which you left the scene, and calmly and calculatingly got rid of your clothes, no doubt blood-spattered, and got rid of the weapon, and you never told anybody where those items were, or where the police could find them, because you gave no answer to the police when they asked you about this incident, it represents the callousness which does raise the prospect that you represent a danger to the public of committing further offences in the future, and causing harm to the public at large. I have high regard for the Youth Offending Team who prepared the report and their conclusions, in paragraph 5.3, that you do not represent a significant risk of committing further specified offences. But I am also minded, and I know from the presentence report that was prepared on your behalf, that the Youth Offending Team probably did not have the view of the CCTV that we did, and were able to observe your conduct. And how, in a short while after this serious incident had taken place, you are standing outside chatting calmly to your friend, re-enacting the very circumstances in which you inflicted this injury. Re-enacting the stabbing motion. So, for those reasons, I have come to the conclusion that you do represent a danger in the future.

19. The judge then referred to various matters which were relevant to the seriousness of the offending and mitigation: the fact that it was apparently a single blow, and the appellant's expressions of considerable remorse since discovering the catastrophic consequences of his actions.
20. By reference to the definitive guidelines, the judge concluded that it was a category 1 offence, the harm was at the highest level in view of the injuries, but was also high culpability due to this bringing the flick knife to the scene and using it. In addition, there were a number of factors increasing the seriousness of the offence: the ongoing effect on the victim demonstrated by the fact that his life had changed forever, and the presence of others on the street at the time, including a young girl with her parents. Added to that was the fact that the appellant had concealed and disposed of evidence.
21. Had he been an adult and convicted by a jury, his sentence would have been one of 13 years' imprisonment. He was entitled to 10 per cent credit for having accepted his guilt, although it came very late in the day. Reducing the sentence to 140 months, which would be reduced further by one third because of his age to 94 months, the sentence would be a term of 94 months' youth detention. In addition, there would be an extended period of 24 months' licence.
22. On count 1, the sentence was a term of 6 months' youth detention but that would run concurrently.
23. On this appeal, Ms Power raised two grounds of appeal, which she developed in oral argument. The first was that the judge took a starting point which was too high and did not make sufficient reduction in the sentence to reflect the appellant's youth, his previous good character, his remorse and the underlying background to the offence. Secondly, that the judge was wrong to find the appellant was dangerous. He wrongly rejected the findings of the pre-sentence report and his reasons supporting that conclusion in the sentencing remarks were insufficient.
24. In our view, the judge was entitled to characterise the section 18 offence as falling within category 1A of the definitive guideline. It was category 1 harm because the assault caused very serious and life-threatening injuries to the victim. It was category A culpability because there was the use of a weapon. There may have been a lack of premeditation in relation to this particular victim, which would be a factor indicating lower culpability, but that is a factor that counts for very little in the light of the fact that the appellant was carrying a knife and was prepared to use it.
25. It follows that the starting point was a term of 12 years with a range of 9 to 16 years for an adult. There were also the three aggravating factors identified by the judge. First, the dire ongoing effect on the victim, whose life has been changed forever. Secondly, the attempt to conceal or dispose of the evidence. Third, the commission of the offence in a street, at a time when there were members of the public, including a young girl accompanying her father, nearby. Against that was the fact that it was single blow and the mitigation of his remorse and his youth.
26. In our judgment, the judge cannot be criticised for treating this crime as justifying a 13-year sentence for an adult and he was right to reduce it by one third to reflect the appellant's age and give further credit of 10 per cent for the belated plea, a determinate term of 94 months.
27. We turn then to the question of dangerousness.
28. As the judge noted, the writer of the pre-sentence report at section 5.3 did not consider that the appellant was dangerous. The report said this:

Bearing in mind that Ce-Jay's offences appear motivated by impulsivity and a lack of consequential thinking, in addition to the offences being his first and only conviction. My assessment is that there is not significant risk of Ce-Jay committing a further specified offence in future whether serious or not.

29. Although that was expressed as a conclusion, it was founded on extensive information, which was set out in the report at paragraph 2.1.
30. The judge was entitled to form his own view notwithstanding the pre-sentence report, but it appears to have been based very largely on the appellant's conduct after the crime.
31. In our view, the question of the need for an extended sentence depended on whether the appellant met the statutory test for dangerousness and then whether the danger could properly be met by a determinate sentence (see R v Burinskas [2014] 2 Cr App R (S) 45). This was a young man with no previous convictions who was facing a long determinate sentence which would involve a lengthy period of supervision on licence.
32. For these reasons, we have concluded that an extended sentence should not have been passed in this case.
33. We therefore quash the sentence on count 2 and substitute a sentence under section 91 of the Powers of Criminal Courts (Sentencing) Act 2001 of 94 months: 7 years and 10 months.
34. We need also to correct the sentence passed under count 1. The maximum sentence for this offence is 4 years and section 91 of the 2001 Act only applies in cases where the offender appears before the Crown Court in respect of an offence for which an adult could be sentenced to at least 14 years. Where an offender is to be sentenced for an offence which qualifies for a sentence under section 91 and another which does not, a term of detention commensurate with the seriousness of all of the offences should be passed under section 91, but only on those offences which so qualify; the court must order no separate penalty on those which do not (see R v Mills [1998] 2 Cr App R (S) 128).
35. For this reason, we quash the concurrent sentence of 6 months' youth detention on count 1 and order that there be no separate penalty.
36. To that extent, the appeal is allowed.

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