England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 July 2016

1. SIR BRIAN LEVESON P: On 18 February 2016 in the Stratford Youth Court, the interested party C, who was born on 12 October 1998, fell to be sentenced for two offences, namely robbery contrary to section 8 of the Theft Act 1968, and threatening another with a knife, contrary to section 139AA of the Criminal Justice Act 1988. The Youth Court imposed a referral order, the terms of which were that C should be subject to the order for 12 months. The panel imposed a curfew for 9 months from 10:00pm to 6.00am. He was also required to pay compensation of £250. The Crown Prosecution Service now make application judicially to review this decision and, in particular, its decision not to commit C to the Crown Court for sentence under the provisions of section 3B of the Powers of Criminal Courts (Sentencing) Act 2000 on the grounds that these decisions individually and cumulatively were so far outside the reasonable range of decisions open to the Youth Court as to amount to an error of law requiring the intervention of the court.
2. The facts must be set out in a little detail. At around 21:20 on the evening of 16 December 2015, the victim, T, who was then aged 16 (having been born on 27 January 1999) was on a yellow coloured Trek mountain bike on Martha Street, London E1. C approached him and demanded that he hand the bicycle over. T initially refused, at which point C pulled out what has been described as a meat cleaver type knife approximately 30 cm in length. C threatened T with the knife, pointing it at him. He then stabbed out at him, striking him on the left side of the torso but not penetrating his skin. T was later to tell the police that, at that stage, he believed that C was trying to kill him. Because the top edge of the knife was blunt, there was no penetrating injury but as he drew the knife back, C sliced through T's left hand by the thumb and index finger causing injury, to which I shall later return.
3. T moved quickly away from C, crossing the street, whereupon he was met by a friend of his brother. Both went into a fish bar where staff attempted to administer first aid. The police were summoned. Meanwhile, C had taken the bicycle and ridden away. The robbery was witnessed by an independent person who later provided a witness statement to the police. While first aid was being administered to T, he again saw C. At his stage C was outside the fish bar and a further altercation was occurring. Once again C drew the knife while shouting at another young man. This incident was captured on CCTV later retrieved by the police from a nearby shop. It showed C holding a knife in one hand and chasing a group of males on Spencer Way.
4. Meanwhile, prior to the arrival of the police, a group of unidentified males, who happened to include the owner of the bicycle, had begun to attack C. The bicycle was ridden off by its owner. The group of males involved in the further altercation dispersed prior to police arrival but there is no doubt that C had been the victim of an assault and was initially so treated. Once T informed the police of the robbery, however, C was arrested. He was cautioned and made no reply. A knife in a sheath was found located near to where C was detained.
5. T was taken to the Royal London Hospital for treatment. He had suffered 2 deep lacerations to the rear of his left thumb, 6.5 cm by 2.5 cm and left index finger, 6.5 cm by 2 cm. The bone and cartilage were found to be chipped. The injuries required an operation under general anaesthetic to stitch the wounds. The injuries have caused permanent scarring to T's left hand and, at the time of the victim impact statement, the hand remained weak and swollen such that he was still suffering pain and occasionally required to take medication.
6. Medical evidence was provided to the effect that functional use of the hand was likely to return after approximately 3 months. In his victim impact statement, T described his present feelings in these terms:

"The stabbing has made me feel more apprehensive and scared about going out of my local area. As a result I am afraid to socialise as much with my friends outside my house. This incident has also had an effect on my family members as they are always worried about me. I have been attending regular physiotherapy appointments at the Royal London Hospital. The person stabbed me has really affected my life and that of my family members in very much a negative way."

7. C was interviewed under caution in the presence of a solicitor and an appropriate adult but declined to answer questions. He was released on bail pending further enquiries and subsequently identified by T at an identification parade. On 25 January, he was re-arrested, having breached his bail conditions. He was again interviewed under caution but continued to decline to answer questions. He was then charged and remanded in custody.
8. On 26 January, C appeared before the Stratford Youth Court. He then entered guilty pleas to both charges. No basis of plea was proffered or suggested. A pre-sentence report was ordered and he was admitted to bail. The report itself makes interesting reading. Its author observed that C had "minimised his behaviour and is yet to accept full responsibility for his actions". It noted however that both his parents were in poor health. C's family had come to the attention of social services in the past and C himself had been the subject of concern following a physical assault by a sibling. The report concluded that C represented a high risk of harm but that the risk was not imminent.
9. It expressed the opinion that C was assessed as vulnerable and that although a custodial sentence would protect the public, this, his first occasion in custody, might serve to increase that vulnerability. C had not previously had the support of the youth offending team or addressed the underlying issues linked to his behaviour which, in the writer's assessment, could be managed with risk reduced as part of a community penalty.
10. So it was that the case appeared before the Youth Court for sentence. The case was opened in full with the victim personal statement read out. Colour photographs of the injuries were available. The members of the bench were directed to the Sentencing Guidelines Council's definitive guideline on sentences for robbery. The prosecutor referred to the guideline relevant to young offenders based on a first time offender aged 17 years old who had pleaded not guilty which, in relation to this offender, represented his position save for the guilty plea. It identified the categories of offences, the most serious of which being described as:

"The victim is caused serious physical injury by the use of significant force and/or use of a weapon".

11. In its acknowledgment of service, the Youth Court identifies that the reasons given at the time that the sentence was passed included the observation that this offence was very serious and unpleasant and that the court was mindful of the guidelines, such that a detention and training order was the starting point for a sentence; the magistrates did find that serious injury had been caused. The conclusion of the magistrates, however, was that they would depart from the guidelines on the basis that the proposed order within the community was the best way to prevent future offending.
12. The starting point, defined by the guideline, for a young offender committing an offence of robbery which causes serious physical injury with the use of a weapon is one of 7 years' detention; the sentencing range is 6-10 years' detention. Further, the Coroners and Justice Act 2009 requires a court when passing sentence to follow the guidelines unless it is in the interests of justice not to do so, in which case reasons must be proffered. Save for the assertion that the proposed order within the community was the best way to prevent future offending, it is unclear what reasons the Youth Court had for departing from the guideline. In that regard, by referring to a detention and training order, the maximum sentence of which is only 2 years, it is clear that the youth court were failing to have regard to the terms of the guidelines in any or any sufficient detail.
13. From the starting point of 7 years' detention with a sentencing range of 6-10 years' detention, Mr Weekes for the Crown Prosecution Service identifies additional aggravating features. These were the fact that the offence was committed at night and that the victim was vulnerable and targeted, doubtless for his bicycle. He recognises, however, that there was some evidence, if not clear evidence, of remorse, and, in the light of the pre-sentence report, he could not legitimately challenge the immaturity of the offender. Nevertheless, he argues, this case undeniably required a substantial period of detention.
14. In that regard, Mr Weekes refers to the authorities that deal with knife crime generally. I underline that these observations are concerned with any offence involving the use, possession or threat of use of a knife, irrespective of the more aggravating features of robbery and injury that this case attracts. Thus, in Povey [2009] 1 Cr App R (S) 42 Sir Igor Judge P at paragraph 3:

"Carrying a knife or an offensive weapon without reasonable excuse is a crime which is being committed far too often by far too many people. Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order. That is because even if concealed, even if carried only for bravado or from some misguided sense that its use in possible self-defence might arise, it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial, like a look, for the weapon to be produced. Then we have mayhem and offences of the greatest possible seriousness follow, including murder, manslaughter, grievous bodily harm, wounding and assault. All those offences have victims."

He went on a paragraph 4:

"Offences of this kind, carrying an offensive weapon or knife, have recently escalated. They are reaching epidemic proportions. Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. The courts will do what they can to help reduce, and, so far as practicable, eradicate it. In our view, it is important for public confidence in the criminal justice system that the man or woman caught in possession of a knife or offensive weapon without reasonable excuse should normally be brought before the courts and prosected. Any conviction should be recorded and then the offender sentenced. For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public..."

15. That message was emphasized by Lord Judge, then Chief Justice, in AG Ref 49 of 2008 [2008] EWCA Crim 2304 when he said at paragraph 21:

"Those who carry knives in the street and then use them to wound and injure must expect severe punishment -- no ifs, no buts, no perhaps. We must do what we can to eradicate this dreadful knife problem."

16. It is not irrelevant that, in that case, the offender when 16 pleaded guilty to an offence of wounding with intent and was sentenced to a term of 12 months' detention and training. That term was increased by this court to one of 3 years, pursuant to section 91 of the Powers of Criminal Court (Sentencing) Act 2000.
17. Finally, it is appropriate to refer to the more recent case of R v Monteiro [2014] 2 Cr App R (S) 62 in which Lord Thomas CJ reiterated the guidance provided in Povey and said:

"18. It is important that the Youth Court plays the closest attention to the guidance given in Povey. Given the prevalence of knife crime among young persons, the Youth Court must keep a very sharp focus, if necessary through the use of more severe sentences, on preventing further offending by anyone apprehended for carrying a knife in a public place and to securing a reduction in the carrying of knives. Such sentences fulfil the principles applicable to the sentencing of such persons as set out in s.142A of the Criminal Justice Act 2003 and the Sentencing Council Guidelines. The appeals of NT and RAB illustrate the very serious consequences that can follow from the carrying of knives by young persons and why it is of great importance that the Youth Court maintains the sharp focus called for in Povey by imposing appropriate sentences that will contribute to preventing further offending and to a reduction in knife crime."

18. Thus, a strict application of the guideline would lead to a starting point of 7 years' detention which, even discounting the aggravating factors and making some allowance for mitigation (which, taken together is perhaps greater than otherwise might be deserved), would not reduce the sentence below one of 6 years' detention. There must then be deducted full discount for the plea of guilty at the earliest possible opportunity. On the face of it, therefore, the appropriate term in accordance with the guidelines is one of 4 years' detention.
19. Mr Grubeck on behalf of C argues that such an approach is mechanistic and does not play sufficient attention firstly to the terms of the pre-sentence report and also, more significantly, to the legal framework within which sentences on young offender fall to be passed. He correctly identifies that the guideline refers to section 33(1) of the Children and Young Persons Act 1933 which requires the court to have regard for the welfare of the child, and section 37 of the Crime and Disorder Act 1998 to have regard the overall aim of the youth justice system or preventing re-offending. He also notes that the guideline observes at paragraph 14:

"Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable."

20. We recognise these features and indeed the welfare of young persons is a very important aspect of any sentencing regime. Of course, the guideline itself was specifically devised for young offenders but clearly identified also the very serious public interest considerations where offending reaches a level of gravity which requires very substantial custodial sentences, not least for the purposes of deterrence.
21. It is against that background that we consider the powers of this court. Mr Grubeck is entirely accurate when he submits that there is no power to refer unduly lenient sentences from the youth court to this court and that there is no regime in place such as flows from section 36 of the Criminal Justice Act 1988. However, there is a very clear strand of authority which does provide this court with jurisdiction to review the circumstances of any sentence passed by a magistrates' or youth court which can best be summarised in but a few references to decided authority. In R v Warley Justices ex parte DPP [1999] 1 WLR 216 Kennedy LJ said (at page 225):

"It is worth emphasising that this court will only interfere with sentences imposed by a Magistrates' Court if they are 'truly astonishing'... It may be no more than a way of giving emphasis to the familiar test of irrationality, and certainly if the Magistrates' Court fails to have regard to a material consideration, this court can intervene (see R v Flax Bourton Magistrates ex parte Customs & Excise (1996) 160 JP 481), but the point being made in both cases, and which I readily accept, is that this court will not lightly interfere."

22. The requirement for a sentence to have been truly astonishing before a challenge by way of judicial review to succeed is based on two earlier decisions in which claimants sought judicial review of sentences imposed on their case on appeal to the Crown Court and the Magistrates' Court (see R v St Albans Crown Court ex parte Cinnamond [1981] QB 480 and R v Croydon Crown Court ex parte Miller [1987] 85 Crim App R 152). In R v Truro Crown Court ex parte RD [1997] COD 296, however, Lord Bingham CJ, considered these earlier authorities and expressed the test in the following terms (at [12]):-

"It is clearly established by earlier cases, in particular R v St Albans Crown Court ex parte Cinnamond and R v Croydon Crown Court ex parte Miller, that judicial review did not offer a backdoor means of appeal against the sentences imposed by the Crown Court and appeals from justices. It was nevertheless recognised by those authorities that there came a point at which a penalty was so far outside the reasonable range of penalties as to be indicative of manifest error of law."

23. Against that background we come to consider this decision. We can readily understand that the Youth Court would be anxious to be concerned with and seek to deal with the welfare of the offender, in this case C. But in our judgment that must be balanced against its other responsibilities. Had this case been less serious then we can see great force in the magistrates permitting far greater latitude to the offender and taking a course which encouraged his rehabilitation. In our judgment, however, at the level at which this sentence should have flowed from a consideration of the guidelines, we believe that the conclusion of the Youth Court was indeed truly astonishing and so far outside the reasonable range of penalties as to be indicative of a manifest error of law. In those circumstances, on the face of it, the decision should be quashed.
24. Mr Grubeck argues that, even if the sentence was truly astonishing, it is appropriate for this court to take a step back before quashing the sentence and remitting the matter to the youth court for further consideration for three quite separate reasons. First, he points to the way in which that C has in fact dealt with the order which he was subject to by the Youth Court. There is a statement from his supervisor on the intensive part of his referral order who speaks of his progress and the fact that he engaged very well to date with the order, making "real progress" in addressing his offending behaviour. Second, he points to the fact that some 5 months have elapsed since the passage of this order, the delay in these proceedings being due neither to the fault of the Crown Prosecution Service nor of C. The result is that he has served half his sentence. He identifies that his expectation and that of his family was that the matter had been put behind him. Finally, although not expressed in these terms, he is entitled to rely on the well known principle of double jeopardy which applies when cases come to the court by way of unduly lenient reference in relation to those who have been sentenced to non custodial terms or terms that will expire very shortly.
25. In our judgment, these are all relevant features but they are not relevant features at this stage of the exercise. It will be appropriate in due course for the Youth Court to reconsider this sentence and to pay regard to these aspects of the case, and it may very well be that in paying full attention to them, a course can be adopted which does not require committal to the Crown Court but allows the case to be sentenced within the Youth Court albeit at the uppermost reaches of its jurisdiction. The alternative is to commit for sentence under the provisions of section 3B of the Powers of Criminal Courts (Sentencing) Act 2000 and leave the matter to the Crown Court. We do not reach a conclusion as to these possibilities but merely identify the importance of considering all the circumstances. Having said that, however, in my judgment this sentence was truly astonishing. It is quashed and the matter is remitted to the youth court.
26. MR JUSTICE SINGH: I agree.