No: 9801575/R2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 2nd October 1998

                    B E F O R E :
 
                 THE VICE PRESIDENT
                     (LORD JUSTICE ROSE)

                  MR JUSTICE SACHS
 
                         and

                  MR JUSTICE MOSES
 
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            ATTORNEY GENERAL'S REFERENCE
 
                 No. 17 of 1998
                (ELLEN MARIE STOKES)
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
      Tel No: 0171 421 4040   Fax No: 0171 831 8838
        (Official Shorthand Writers to the Court)
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MR D PERRY appeared on behalf of the Attorney‑General
MR J FISHER appeared on behalf of the Respondent
 
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                      JUDGMENT
             (As approved by the Court)
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                   Crown Copyright 
                               Friday 2nd October 1998
THE VICE PRESIDENT:  The Attorney‑General seeks the leave of the Court under section 36 of the Criminal Justice Act 1988 to refer a sentence said to be unduly lenient.  We grant leave.
      The offender is a 43 year old lady who, on 17th February 1998, pleaded guilty to wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861.  She was sentenced by Mr Recorder AT Smith QC, sitting at Birmingham Crown Court, to 2 years' imprisonment suspended for 2 years, together with a 2 year supervision order.
      In outline the circumstances were these.  On 2nd February 1997 the offender, who was a traveller, then aged 42, attacked her 22 year old daughter‑in‑law with a Stanley knife.  She caused injuries requiring 52 stitches and permanent scarring to the victim's arm and back and behind her right ear.  The victim at the time was 7 months' pregnant.
      In a little more detail, the facts were these.  A day or two before the attack, there was a dispute in a public house in Highgate, Birmingham, involving members of the Stokes family.  It was the consequence of a family feud of some history.  A bare fist fight was arranged to take place on a piece of open ground in  Spark Hill at midday on 2nd February.  The family there gathered.  The fight, which was between the offender's son and her nephew, took place.  While it was in progress the offender spoke to an Asian man, who then attacked the husband of the ultimate victim.  The offender then approached the victim Anne Stokes and, as we have said, she was 7 months' pregnant, and the offender wielded upon her a Stanley knife.  She was helped in the attack by her son and husband.  The victim tried to run away but was knocked to the ground by the offender's husband.  The offender made off from the scene with her son and husband.
      The victim was taken to hospital. It was found that the cut behind her right ear, to which we have referred, required 24 stitches.  She had two large cuts to the top left of her back, requiring 14 and 10 stitches respectively. She had a small cut on her upper left arm, requiring four stitches and, it appears from the photographs before the Court, there was additionally a small cut of no great consequence to her left cheek. It is apparent that the knife had been used at least four times.
      The offender was arrested at home on 19th February 1997.  She explained in interview that there had been a family feud in progress for 2 or 3 years. She had  attended the arranged fist fight because she was concerned that her son was to fight an older man.  She admitted, in interview, that she had gone beserk after Ann Stokes had grinned at her, but she claimed she could not recall using the knife.
      Her husband and son were also arrested on the same day. They, in interview, denied any involvement in the offence.  In circumstances to which in a moment we shall return, proceedings against them were discontinued at the Crown Court on the occasion on which the offender pleaded guilty.  On that occasion, a number of material witnesses in relation to the father and son had failed to attend court.  The offender pleaded guilty on the basis that she alone was responsible for causing the injuries.
      On behalf of the Attorney‑General, Mr Perry submits that there are the following aggravating features present.  First, the use of a Stanley knife; secondly, the extent and seriousness of the injuries, and thirdly, the advanced state of pregnancy of the victim.
      He draws attention to the following mitigating features.  First, that the offender is previously of good character and is the mother of nine children, and has a medical history of depression spanning some 20  years.  She also suffers from a condition of wasting muscle tissue. There was before the learned judge, and is before this Court, a psychiatric report indicating that, at the time of the offence, she was suffering from mild depression, probably by reason of the family feud background, but that condition did not affect her intention when using the knife.
      The submission is made on behalf of the Attorney‑General that the sentence passed by the learned Recorder failed adequately to reflect the gravity of the offence and public concern about offences of this nature.
      The Court was referred to a number of authorities, but it is only necessary to refer to one of those, Attorney‑General's Reference No 47 of 1994 (R v Smith) 16 Cr App R(S) 865, when a division of this Court, presided over by the then Lord Chief Justice, Lord Taylor, increased a sentence of two‑and‑a‑half years to 4 years, following a trial in which the offender was convicted of a like offence.  In the course of giving the judgment of the Court, the learned Lord Chief Justice referred to the general level of sentence appropriate for wounding with intent as being of the order of 4 years and upwards.
      The circumstances in which the offender came to  plead guilty, as we have already indicated, are further set out in a document agreed by counsel, now and previously in the case, which is to this effect. Discussions took place between counsel for the Crown and the three defendants then charged in the Recorder's room. Despite what this Court has repeatedly said, those discussions were not recorded on tape or by a shorthand writer.  That is lamentable.
      The note from counsel describes how the purpose of the discussions, so far as counsel were concerned, was to indicate to the Recorder that discussions were taking place between counsel, that prosecution witnesses had not attended, and that the prosecution were giving consideration to what would be a proper way in which to proceed.  There then follows this:
 
"To our astonishment, before any of us could say very much, the Recorder indicated that he thought that Mrs Stokes needed the help and support of the Probation service, and asked whether or not this would be forthcoming.
 
He very plainly indicated that he was not likely to impose an immediate custodial sentence on Mrs Stokes." 
 
    In the light of that observation Mrs Stokes counsel:
"...told her in general terms, what had been said by the Recorder.  She then pleaded guilty to wounding with intent and the case against the other two defendants was not proceeded with." 
 
None of that, as we have said, formed the subject of any contemporaneous note and it is, in our judgment, highly regrettable that those discussions took place in that way, unrecorded.
      Against that background, on behalf of the offender, Mr Fisher submits that, the offender having pleaded guilty following the indication of a non‑custodial sentence by the Recorder, it is not open to this Court on an Attorney‑General's Reference to interfere with the sentence which was passed.
      In support of that submission, he referred us to a number of authorities, in particular, R v Keily 11 Cr App R (S) 273 and R v Jackson [1996] 2 Cr App R(S) 175, which undoubtedly establish the principle that, if a trial judge has given an indication of a lenient sentence, which results in a defendant pleading guilty, because an expectation of leniency is thereby raised in the mind of the defendant, this Court, on an appeal to it by a defendant who has been sentenced more harshly, is bound to give effect to the indication given by the trial judge.
      Mr Fisher submits that that approach applies equally where a reference is sought to be made by the Attorney‑General under the Criminal Justice Act 1988.  He accepts that there stands in the way of the success of that submission, a decision of this Court in Attorney‑General's Reference No 40 of 1996 (R v Robinson) [1997] 1 Cr App R(S) 357.  In that case, the judgment of the Court was given by the Lord Chief Justice, Lord Bingham of Cornhill.  It was a case in which an indication of a 5 year sentence had been given by the sentencing judge, following which the defendant pleaded guilty.  It was accepted before that court, by counsel then appearing for the offender, that the circumstances were such as not to prevent this Court from interfering on an Attorney‑General's Reference, but the way in which the Court exercised its discretion on such a Reference should be influenced by that which had occurred below.
      In the course of giving judgment, at page 362, Lord Bingham said by reference to the offender's counsel:
"...he submits that where such an indication is given, the Court should be very slow to increase a sentence. But he accepts that the Court retains a discretion; he urges that it is a discretion to be exercised on all grounds relevant in considering the fairness to the individual defendant and also the wider public interest.
 
Whilst the Court wishes to make plain its extreme distaste for the procedure which was followed in this case, we consider that this is an appropriate basis upon which to approach the matter where such an incident has, for whatever reason, occurred." 
      Mr Fisher's bold submission to this Court is that that observation by the Lord Chief Justice and the decision of the Court in that case, whereby the offender's sentence was increased above the 5 years imposed by the sentencing judge, was per incuriam.  He makes that submission because the authorities establishing the principle, to which we have earlier referred, were not cited to the court, and because in a commentary upon Robinson, to be found in 1997 Criminal Law Review, at page 70, Dr David Thomas QC advances argument in support of the submission which Mr Fisher now makes.  We reject Mr Fisher's submission.
      There is, as it seems to us, no warrant either in the terms of the 1988 Criminal Justice Act or in principle why this Court, on an Attorney‑General's Reference, must be bound by an indication as to leniency given by the sentencing judge, even where that is given prior to the entering of a plea of guilty.
      There may, of course, be a variety of factors which, in any particular case, induce a particular defendant to plead guilty.
      We accept that, in the present case, the indication in relation to sentence given by the Recorder was a factor.  We have little doubt that there were other factors, including the prosecution's decision not  to proceed against the offender's husband and son.
      Be that as it may, if it were the position that a legitimate expectation of a lenient sentence prior to a plea of guilty, was a sufficient reason for this Court not to exercise its powers under section 36 of the Criminal Justice Act 1988, the whole purpose of those powers would, as it seems to us, be set at naught. Anyone who pleads guilty to an offence which is, by the terms of that Act, susceptible to an Attorney‑General's Reference must, as it seems to us, be taken to do so in recognition of the risk that, if a lenient sentence is passed, that may give rise to an Attorney General's Reference to this Court, on which this Court may increase the sentence passed by the sentencing judge. It follows that we do not accept that the case of Robinson was decided per incuriam.
      So far as the other aspects of this matter are concerned, Mr Fisher accepts that, in the ordinary way, a sentence of three or four years' imprisonment could have been expected for an offence of this gravity. But he submits that the personal circumstances of this offender, to which we have already briefly referred, are such as to give rise to exceptional circumstances which would properly justify the suspension of the sentence which might otherwise be merited. 
      That submission we are unable to accept.  It does not seem to us that this was a case in which it could possibly be said that there were exceptional circumstances justifying suspension. In any event, for the reasons already given, the sentence of imprisonment which would have been appropriate exceeds that which could have been suspended.
      That being so, taking into account all the circumstances of this case, including the double jeopardy which is a feature of all references of this kind, and including that which the learned Recorder said, unwisely, in the circumstances to which we have earlier referred, we are of the view, first, that the sentence passed by him was unduly lenient, to an extent to which this Court should interfere, and secondly, that the sentence which is now appropriate on this offender is one of 2 years' imprisonment.  That sentence will run from the date on which she surrenders to custody.  We are told that she is presently in the Republic of Ireland.  We order that she surrender to custody within 7 days.
 
MR FISHER:  May I mention, I would like to consider the question of seeking your Lordships' certificate for referring this matter to the House of Lords on the point  of law issue. If I may do so I would like to think about it.
 
THE VICE PRESIDENT:  Do not think about it so long that this Court is no longer presently constituted as it is.
 
MR FISHER:  I understand I can either do it orally now or submit it in writing in 14 days.
 
THE VICE PRESIDENT:  Without expressing a view as to whether a certificate might or might not be granted, if on a written submission a certificate was refused, you have the right to make oral submissions. All I am saying is, if, you want to make any oral submissions, you must do so while this Court is presently constituted which is up to ‑‑ we are certainly sitting together for 2 more weeks.