No: 2004/1018/A6 
Neutral Citation Number: [2004] EWCA Crim 1239
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 28 April 2004
B E F O R E:

LORD JUSTICE LATHAM 

MRS JUSTICE COX 

THE COMMON SERJEANT
(His Honour Judge Peter Beaumont QC) 
(Sitting as a Judge of the CACD)

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 
 
ATTORNEY-GENERAL'S REFERENCE NO 19 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR R HORWELL AND MR E BROWN appeared on behalf of the ATTORNEY GENERAL
MISS S MUNRO appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	LORD JUSTICE LATHAM:  This is an application by Her Majesty's Attorney General for leave to refer to this court a sentence imposed on the offender Brett Charlton, who is 27 years of age, on 22nd January 2004.  On that day he pleaded guilty to an offence of racially aggravated wounding, he having been charged originally with an offence of wounding with intent to cause grievous bodily harm.  The judge sentenced him in relation to that offence to 10 months' imprisonment.  At the same time he revoked an earlier Drug Treatment and Testing Order which had been made in relation to a charge of burglary and then re-imposed that order with effect from that day.
2.	The facts of the offence to which the offender pleaded guilty on that occasion were as follows.  At about 10 pm on the evening of 30th July 2003, a 16-year-old black youth, Alhassan Kamara, was with two black friends at Worthing Railway Station.  They were sitting on some railings near to a stairway leading to one of the platforms.  Mr Kamara saw a girl with whom he had been at school.  This girl was in fact with the offender.  He said 'hello' to her but she told him to 'fuck off'.  The offender then came up to Mr Kamara and asked why he had spoken to his girlfriend.  Mr Kamara explained that he had been to school with her.  The offender became aggressive and threatening and said words which were generally to this effect:"You fucking black monkey." At that the girlfriend sought to pull the offender away and told him to stop, but he shrugged her off, went towards Mr Kamara, putting his hand into his jacket pocket, from which he produced a knife which he opened; and although Mr Kamara tried to escape he was unable to do so and the offender slashed Mr Kamara across the left side of the neck, causing a significant wound which required 18 stitches and which from the photographs that we have seen was clearly a wound which was close to but fortunately did not affect vital parts such as the jugular vein.
3.	In order to understand the circumstances in which this reference is made and the issues which it raises, it is necessary just to say something about the history of the matter and in particular refer to what occurred during two hearings in chambers before the trial judge, His Honour Judge Thorpe.
4.	The offender is a man with a significant record of previous convictions.  The first relevant one that we need to refer to was a conviction for burglary on 21st May 1999 for which he received a sentence of five years' imprisonment.  On his release from that sentence of imprisonment he offended again on 19th February 2003.  That was within the licence period.  For that offence he received a 12 month Drug Treatment and Testing Order on 3rd July 2003 which was imposed by His Honour Judge Thorpe who did not give effect to the breach of the licence by any separate order.  The Drug Treatment and Testing Order that he made at that time reflected an extremely positive report from the probation service to the effect that the offender's drug-taking was the undoubted background to his previous offending behaviour and he at last was prepared to face up to that and to seek to keep himself free from drugs.  An indication of how persuasive that report must have been to the judge is the fact that the offender's co-defendant on that occasion was sentenced to four years' imprisonment for that offence.
5.	It can be seen that unhappily it was only some four weeks or so later that the offender committed the offence with which we are concerned.  By that time no work had in fact been done with the offender in relation to the Drug Treatment and Testing Order.
6.	After his arrest he was remanded in custody.  When first arraigned on 24th November 2003, he pleaded not guilty to the count of wounding with intent.  There were thereafter directions hearings at one of which, on 13th January 2004, the judge raised for the offender's counsel's consideration a concern that he had about the fact that the offender had not been given an immediate opportunity of an interview by the British Transport Police, who were the prosecuting constabulary.  The offender had apparently been offered interviews at times and places which were unacceptable to the solicitor whom the offender wished to instruct.  The judge suggested that this might provide the basis for an application to stay on the grounds of an abuse of process. That was a somewhat surprising suggestion for the judge to have made; but it would appear that it reflected a concern that he had about the way in which the British Transport Police had dealt with other prosecutions with which he had dealt.
7.	On 19th January 2004 there was a further directions hearing at which again the issue of abuse of process was raised; but then, at the end of the proceedings in open court, counsel acting for the offender at that stage indicated that he would wish if possible to see the judge in chambers.  The judge acceded to that request.  During the course of the hearing in chambers, the offender's counsel asked in effect what the judge would do if the offender pleaded guilty to an offence of wounding under section 20 of the Offences Against the Person Act.  The judge indicated that his concern at that time was that the Drug Treatment and Testing Order that he had imposed in July had not in fact had a chance to take effect and said at page 20 of the transcript that we have:  
"On the basis that he has been inside six months, he has served a 12 month sentence, has he not?  I think I would take the view that subject to anything else, were this a plea to section 20 on that basis, I think he has served long enough.  I would not interfere with the drug treatment and testing order but give it a chance to run.  Of course if he breaches that then I would deal with him for the domestic burglary and he would be facing a substantial sentence there."
8.	Prosecuting counsel indicated that he was in no position at that time to indicate what the attitude of the prosecution would be to a plea to simple section 20.
9.	The parties returned to court on 22nd January 2004 with a different prosecuting counsel present.  Prosecuting counsel then instructed was Mr Cherrill.  He informed the offender's counsel, Mr Shapiro, that the prosecution would be prepared to accept a plea to racially aggravated unlawful wounding and not to simple wounding under section 20.
10.	Both counsel then went in to chambers to see the judge.  The offender's counsel informed the judge as to what the position of the prosecution was and specifically asked the judge whether or not a plea to racially aggravated wounding, as opposed to simple wounding, would make any difference to the indication that the judge had previously given.  The judge said as follows: (Page 23) 
"You know my views on racially aggravated matters.  I think the world has gone PC mad and I say it advisedly having mixed race grandchildren with a black son-in-law.  I think the legislation should be used and worked.  I cannot really design for a drunken episode such as 'fucking black monkey'.  If you are asking whether it would make any difference to the sentence, the answer is no.  If that is what you are actually asking me." 
The offender's counsel indicated that that was precisely what he was asking.  The judge then reiterated the fact that so far as he was concerned the important point was to pass a sentence which would allow the offender's immediate release so that he could then impose a Drug Treatment and Testing Order and enable the offender to obtain the benefit of that order which was what he had hoped would have already happened in July.
11.	There was no indication given by prosecuting counsel at any stage before the judge indicated his views as to the prosecution's position; but as the parties left the room Mr Cherrill said:  
"Your Honour, it sounds, therefore, as if the matter can be resolved."
12.	The indictment was thereafter amended to add the second count in the form to which prosecuting counsel had indicated he would be prepared to accept a plea; and the matter proceeded on the basis of the offender's plea then of guilty.
13.	The judge, as we have indicated, sentenced the offender to 10 months' imprisonment for the offence with which we are concerned and, as we have already indicated, re-imposed the Drug Treatment and Testing Order to take effect from the new sentencing date.
14.	However, the probation service on considering the matter, concluded that it was inappropriate for a Drug Treatment and Testing Order to be made in the light of the offender's plea to the offence of violence with which we are concerned.  The matter then had to come back before the judge.  It will be noted that the judge had at no stage until making the Drug Treatment and Testing Order asked the probation service for their views in the light of the changed circumstances.  He had relied simply on the material which had persuaded him to make that order in the first instance.
15.	In those circumstances when the matter came back before the judge, the judge appreciated that, even though the probation service recommended as an alternative to a Drug Treatment and Testing Order a Community Rehabilitation Order, he had no option but to impose a sentence of imprisonment and accordingly on 20th February 2004 the offender was sentenced for the burglary to three years' imprisonment, which is the sentence which he is now serving.
16.	Counsel for the Attorney General, Mr Horwell, has submitted that although the offender had been given an indication as to sentence by the judge which resulted in his changing his plea and accordingly changing his position, he is nonetheless entitled to refer the matter to this court for us to consider the appropriateness of the sentence which was imposed.  He relies in that regard primarily on the authority of Attorney General's Reference No 4 of 1996 (Robinson) [1997] 1 Cr.App.R (S) 357.  In that case this court, presided over by the then Lord Chief Justice, Lord Bingham, made it clear that when the judge in circumstances such as the present has given an indication as to sentence, that does not preclude the Attorney General from bringing the matter before this court for it to consider whether or not the sentence was unduly lenient.  However, the indication given by the judge will be an important matter for the court to take into consideration when deciding how to dispose of that reference.
17.	The matter was dealt with again in Attorney General's Reference No 17 of 1998 (Stokes) [1999] 1 Cr.App.R (S) 407.  In that case the court was presided over by Rose LJ and the issue was again raised as to the effect of an indication given by a judge as to sentence.  The argument was that the court should not follow the decision in Robinson on the basis that it was per incuriam, which might have been thought to be an ambitious submission.  Rose LJ said as follows at page 411: 
"... 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 ... the whole purpose of those powers would, as it seems to us, be set at naught.  Anyone who pleads guilty to an offence ... must ... 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...  It follows that we do not accept that the case of Robinson was decided per incuriam."
18.	Despite those statements of principle, Miss Munro on behalf of the offender has directed our attention to a number of cases which the Attorney General himself acknowledges are cases in which those principles have been said to be subject to some modification.  It is said on the offender's behalf by Miss Munro that the authorities upon which she relied are authority for the proposition that wherever the prosecution has in effect acquiesced in the indication given by a judge, then it would be an abuse for the Attorney General, who stands in the shoes of the original prosecution, then to turn round and suggest to this court that the course in which the prosecution had acquiesced was inappropriate on the basis that it would result in a sentence which was unduly lenient.
19.	Perhaps the high watermark of the authorities upon which Miss Munro bases that argument is the case of Attorney General's Reference Nos 8, 9 and 10 of 2002 (Mohammed and others) [2003] 1 Cr.App.R (S) 272.  That was a case in which this court was presided over by Kennedy LJ.  In that case the Attorney General had sought to refer conditional discharges granted to three men for kidnapping a young woman with a view to preventing her from continuing a relationship with a non-muslim.  The result of an indication by the judge was that the offenders pleaded guilty to those offences.  Before the offenders pleaded guilty, the judge had asked to see counsel in chambers and indicated that he was not thinking of a custodial sentence.  The offenders entered pleas of guilty and the Crown offered no evidence against three of the co-defendants.  The circumstances were such that the court considered that the prosecution had acquiesced in the course that was suggested by the judge so as to justify the conclusion that although in fact in that case it was prepared to grant leave to refer, it was nonetheless not prepared to intervene.  The way the issue of principle was put by the court was as follows, at page 277:  
"The problem of an Attorney General's Reference against the background of a judicial indication that there might be some non-custodial disposal is one which has troubled this Court on a number of occasions in the past.  In Attorney General's Reference Nos 86 and 87 of 1999 [2001] 1 Cr.App.R (S) 141 (p505), this Court considered a number of authorities in relation to this area of the law and said at paragraph 31 on page 512: 

	'... we consider that where an indication is given by a trial judge as to the level of sentencing and that indication is one which prosecuting counsel considers to be inappropriate, or would have considered to be inappropriate if he or she had applied his mind to it, prosecuting counsel should register dissent and should invite the attention of the Court to any relevant authorities as indicated by the Lord Chief Justice in the case of Thompson and Rogers, otherwise if the offender does act to his detriment on the indication which has been given this Court may well find it difficult to intervene in response to a reference made by the Attorney-General.'".
20.	In the present case Miss Munro submits that the position in front of the judge in chambers on the day when the prosecution indicated that they would be prepared to accept a plea of guilty to racially aggravated wounding was precisely the situation envisaged by Kennedy LJ in that passage.  It was a situation where prosecuting counsel, if he considered the sentence that the judge suggested to be inappropriate, had an obligation so to inform the judge or, as it might be put, forever hold his peace.  The consequence, it is said, is that the prosecution has effectively acquiesced in the course that the judge proposed to adopt and the principle to which we have just referred is one which should preclude the Attorney General from being able to ask this court to interfere with the sentence in question.
21.	It seems to us that the passage upon which Miss Munro relies is a passage which must be considered with some care.  It clearly has to be read in conjunction with what Lord Bingham said in Robinson and what Rose LJ said in Stokes.  It is undoubtedly right that if the prosecution has acted in ways in which it could be said that it had played a part in giving the offender the relevant expectation, then clearly it would not be appropriate for this court to permit the Attorney General to argue that the sentence which was imposed, partly as a result of what the prosecution had said or done, was unduly lenient.  But we have, it seems to us, to look in the light of that principle at the facts of each particular case.  On the facts that we have related as to what happened in this case, it seems to us that the prosecution did not act in a way in which it could properly be said that it had played a part in giving the offender the relevant expectation as to sentence upon which Miss Munro relies.  The position was this:  in the first instance counsel for the offender was seeking an indication on the basis of simple wounding and the indication was given.  When the prosecution returned to court on the second occasion, its stance clearly indicated that it was not prepared for the matter to be dealt with on the basis proposed by the offender's counsel and upon which the judge's indication had been given.  What occurred in chambers makes it abundantly plain that the judge, without any reference to counsel at all, made it clear, and indeed crystal clear, what his view was.  Prosecuting counsel in those circumstances, whilst there is no doubt that as a counsel of perfection he should have indicated to the judge the problems of approaching the case as the judge intended to, by reason of the authorities to which we will refer later as to the appropriateness of sentencing for racially aggravated offences, was in the unenviable position of being confronted with a "fait accompli" by the judge.  What happened thereafter does not seem to us to have changed that situation.  Prosecuting counsel was simply accepting what was clearly inevitable. He could not properly resile from the indication he had given as to the acceptability of the plea.
22.	In those circumstances we do not consider that this is a case which falls into the category of case which precludes the Attorney General from asking this court to consider the sentence on the basis that it is unduly lenient and we accordingly give leave to refer.
23.	Turning then to the sentence itself, the first and most important fact to remind ourselves of is the nature of the offence which was charged and the way that this court has consistently indicated that racially aggravated offences should be disposed of.  The position was made abundantly plain by Rose LJ in R v Saunders [2000] 2 Cr.App.R (S) 71.  The passage which seems to us to be a passage which should be in the forefront of the minds of all who sentence in such circumstances, comes at the bottom of page 74:  
"One of the most important lessons of this century, as it nears its end, is that racism must not be allowed to flourish.  The message must be received and understood in every corner of our society, in our streets and prisons, in the services, in the workplace, on public transport, in our hospitals, public houses and clubs, that racism is evil.  It cannot coexist with fairness and justice.  It is incompatible with democratic civilisation.  The courts must do all they can, in accordance with Parliament's recently expressed intention, to convey that message clearly, by the sentences which they pass in relation to racially aggravated offences.  Those who indulge in racially aggravated violence must expect to be punished severely, in order to discourage the repetition of that behaviour by them or others." 
The message has been reinforced by the decision of this court in the case of Kelly and Donnelly [2001] 2 Cr.App.R (S) 73 again a court presided over by Rose LJ, when he considered the advice that had been given to this court by the Sentencing Advisory Panel in July 2000.  The recommendation which he accepted was that the court in cases such as the present should identify what is the appropriate sentence for the offence leaving aside the element of racial aggravation and then add an appropriate amount to reflect the racial aggravation involved and that that exercise should be done transparently - in other words that the court should indicate each element of the overall sentence.  It does not need saying that of course in the present case that was clearly not done by this judge.
24.	The level of sentencing for offences of this nature will clearly depend upon both the seriousness of the wounding itself and the extent to which it can be said that the racial element did indeed aggravate the seriousness of that offence.  In the present case the wound was a substantial wound to a vulnerable part of the victim.  As the judge himself accepted, it was a wound which could well have had far more serious consequences.  The wound was caused by a folded knife which the offender had had in his pocket and which he opened for the purposes of the attack.  Whether or not it was unprovoked may be a matter of some debate; but on its face the fact that the offender's girlfriend tried to stop him indicates what others there thought of his behaviour.  He was a man with a bad record.  It follows that in relation to the assault itself one would have expected that a wounding of this nature on a plea of guilty would have attracted a sentence of two-and-a-half years or upwards in the circumstances.  The racial aggravation described by the judge as merely a "drunken remark", was in fact a clear statement of racial bias; it was offensive; it was in the context of their being other black friends with the victim; and one of the circumstances which this court has to take into account is the effect that the racial remark or remarks may have on those who are in the vicinity.  It our view the judge should have been considering that a sentence of one-and-a-half years or so as an appropriate figure to add in order to reflect the racially aggravated features of this particular case.
25.	The problem here was, as the history that we have related indicates, that the judge had become blinkered by his original determination in July 2003 to provide a Drug Treatment and Testing Order for this offender.  One can only commend his hopes in that regard at that time; but events had overtaken the position by July 2003.  The judge needed to pause, which he did not, in order to ensure that even if a Drug Treatment and Testing Order were even remotely appropriate for this sort of offence, it was one which the probation service was still prepared to recommend. Had he considered the matter with care he would have appreciated that a Drug Treatment and Testing Order was inappropriate in the circumstances where there was an offence of violence in the background.  Accordingly, he allowed himself to be diverted from imposing a sentence which in our judgment it was his duty to impose, which was a significant sentence of imprisonment for this offence.
26.	In determining how we should deal with the matter today, we bear in mind in particular the element of double jeopardy.  We also bear in mind the mitigation which has been urged before us, which is firstly that he had pleaded guilty; secondly, that he had clearly impressed the probation service as to his genuineness in relation to an intent to clear himself from drugs in 2003; and thirdly, and in particular,  that he had been given an indication which had resulted in the plea of guilty.  We consider that the right sentence is one of three years' imprisonment:  two years for the wounding itself and one year for the element of racial aggravation.
27.	We have been asked to consider whether or not to depart from the normal form of order which is that the sentence that we impose today should run from today in accordance with paragraph 10 of schedule 3 to the Criminal Justice Act 1988, but we consider that there is no reason why we should do so and accordingly the sentence will run from today.  That means it will be being served concurrently with the sentence which he is at present serving. 
28.	MISS MUNRO:  May I raise the question of the representation order in this case?  The representation order was granted for junior counsel alone.  In the light of the fact that the Attorney General thought fit to instruct senior treasury counsel and junior treasury counsel to present the case on his behalf, this court has the power to say that it was appropriate for the offender to be represented by Queen's Counsel alone.  I invite your Lordships, with some trepidation, to say that is appropriate in this case. 
29.	LORD JUSTICE LATHAM:  Yes, Miss Munro.