No: 200400806 A1 
Neutral Citation Number: [2004] EWCA Crim 2046
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 21st July 2004
 
B E F O R E:

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division) 

MR JUSTICE NELSON 

MR JUSTICE MCCOMBE 

‑ ‑ ‑ ‑ ‑ ‑ ‑
REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL's REFERENCE NO 9 OF 2004    
 
 ‑ ‑ ‑ ‑ ‑ ‑ ‑
Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 ‑ ‑ ‑ ‑ ‑ ‑ ‑
MR C HEHIR appeared on behalf of the ATTORNEY GENERAL
MR A VAITILINGAM appeared on behalf of the OFFENDER
 ‑ ‑ ‑ ‑ ‑ ‑ ‑
J U D G M E N T 
Wednesday, 21st July 2004
1.	LORD JUSTICE ROSE:  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.
2.	The offender was born in December 1974 and is therefore 29 years of age.  He was charged on an indictment containing two counts.  On the first day of the trial he pleaded guilty to assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, and three days later, on 7th November 2003, he was convicted of the more serious alternative offence of inflicting grievous bodily harm with intent, contrary to section 18 of the same Act.
3.	On 8th January 2004 he appeared before Mr Recorder Still at Exeter Crown Court.  He was sentenced on that occasion to two years' imprisonment suspended for two years; that sentence being made up of two years suspended for two years for the section 18 offence, which had been committed in May 2002, a concurrent sentence of 12 months suspended for two years for an offence of affray on 3rd November 2002, and a similar sentence, similarly suspended, for an offence of affray on 4th March 2003.  There were a number of other matters: common assault, possession of offensive weapons and driving offences committed between 14th February and 4th March 2003.  Concurrent sentences of three and six months were passed in relation to those offences, but suspended, and orders were also made for disqualification and endorsement.  
4.	An existing Community Rehabilitation Order, which had been imposed on 4th October 2002, was ordered to continue.  The offensive weapons, which were three Samurai swords, were ordered to be forfeited.  No action was taken in relation to possible recall to prison for a one and a half month unexpired period of sentence which remained outstanding.
5.	Thereafter, however, on 23rd January 2004, the matter was re‑listed before the Recorder for reconsideration under the slip rule.  On that occasion he deferred sentence for six months; that is until 23rd July, which is two days from today.
6.	The circumstances, in outline, were that, in drink, the offender, who has a history of violence, attacked a vulnerable man who had annoyed him.  He punched the victim to the ground and kicked and punched him in the head while he lay there unconscious.  He bit the victim's genitals, wounding his penis.  He persisted in the attack, in spite of intervention by members of the public.  The victim's left eye, by virtue of the attack, sustained a permanent deterioration in the quality of its vision.  
7.	In a little more detail, the offender had been drinking in a public house when the victim, a Mr Lumley, who was also a customer in the same public house, was talking loudly in a way which annoyed the offender, who was using the telephone.  Mr Lumley has learning difficulties and, as we have said or implied, he had been drinking.  There was a heated debate.  Both of them, Mr Lumley and the offender, were told to leave.  Once outside the offender knocked Mr Lumley to the ground with a punch, rendering him unconscious.  He then kicked and punched him, using what was described as "full" force to the extent that the victim's body moved along the ground as a result of the impacts upon it.  The offender then lent over the victim, turned him over onto his back, knelt down and bit him several times, through his trousers, in the genital area.  Each time his head was described as coming away in a tearing action with the victim's trousers gripped between the offender's teeth.  One of those observing sought to intervene, but the offender ran round him and kicked Lumley in the head again.  More than one witness described the assault as the most vicious he had ever seen.  Ten or twelve blows of one sort or another were observed.  The final kicks were likened to a rugby player kicking a conversion.  
8.	The offender made off.  The victim was taken to hospital.  He was not at that stage aware of the injury to his private parts.  He was examined by doctors and found to have an extremely swollen and cut left eye and marked bruising around the socket.  The pupil of that eye did not react to light.  There was a suspected fracture, not confirmed on x‑ray.  He also had bruises and abrasions to his face and he had blood coming from his nose.  
9.	A little later the victim realised that his penis had lost a piece of skin measuring some 4 cm by 2 to 3 cm.  
10.	His left eye was damaged to the extent that by the time of trial, 20 months after the assault, his vision was still impaired and that eyeball was not as mobile as the other uninjured one.  He continued at that stage to have pain in his eye and forehead.
11.	There was scarring of the penis by reason of the injury which we have described, and, unsurprisingly, the victim felt considerable embarrassment by virtue of that.
12.	When he was interviewed by the police, having been arrested the day after the incident, the offender chose to remain silent.  
13.	At his trial, his defence was twofold: first, that the injuries did not amount to grievous bodily harm and, secondly, that he had no intention to cause really serious harm and, furthermore, he had been acting in self‑defence.
14.	The offender has 38 previous convictions and has since 1993 appeared in court on 16 occasions.  He has been dealt with in a variety of ways, including discharge, fine, curfew order, Community Service Order and Community Rehabilitation Order.  He has been sentenced to detention in a young offender institution and to imprisonment.  
15.	His most recent appearances are as follows.  On 31st July 2001 he was sentenced to nine months for affray, criminal damage and battery, having entered someone's house with a pick axe head and forced his way upstairs causing damage during a fight.  
16.	On 8th February 2002 he was sentenced to nine months for assaulting a police constable, assault with intent to resist arrest and theft.  He was recalled to prison for three months for breach of licence following his conviction for the offence dealt with in the way which we have described on 31st July 2001.  
17.	He was released on licence on 9th April 2002 and was accordingly on licence when the present offence was committed six weeks later on 19th May.  
18.	On 31st May he was returned to prison and his licence was revoked.  On 3rd July he was released on conditional licence.  
19.	On 4th October a two year Community Rehabilitation Order, with a condition of participation in specified activities, was made.  
20.	While he was on bail for the offence which is presently the concern of the court, the offender committed a dwelling house burglary.  No action resulted so far as the consequential breach of licence was concerned.  
21.	On 3rd November 2002, he committed an offence of affray.  He had been drinking and an argument had developed with his girlfriend, who had asked him to leave.  He had gone upstairs to pack and poured paint on her bed and caused a variety of other damage.  
22.	On 9th January 2003 he pleaded guilty before the magistrates to that affray and was committed for sentence, but the same evening he was arrested for being drunk and disorderly.  He punched an unknown man in the street and caused some injury.  He was arrested and found to have two wraps of heroin in his possession.  For those offences he was sentenced on 25th March 2003 to a six month curfew order.  
23.	Meanwhile on 4th March 2003, for another offence of affray, he pleaded guilty before the magistrates and was committed for sentence together with the section 18 offence.  That related to three Samurai‑style swords which he had bought in January.  He was in dispute with the former boyfriend of his girlfriend.  He appeared in the street near the ex‑boyfriend's address, wielding the swords in a martial arts type movement.  He approached a woman returning home with her family and told her not to say a word or he would kill her.  He also made threats to the ex‑boyfriend at his home, although apparently the ex‑boyfriend was not there at the time.  A 16 year old boy was one of those who attended the scene caused by these activities and he tried to calm him down.  He seized the boy by the scruff of the neck.  
24.	On 30th July 2003 he was fined for being drunk and disorderly.  
25.	On 8th January and 23rd January 2004 the sentencing processes to which we referred at the outset of this judgment were carried out.  
26.	On behalf of the Attorney General, Mr Hehir draws attention to what he says are nine aggravating features in relation to this case.  First, the offence was unprovoked.  Secondly, it was in a public place.  Thirdly, the victim was vulnerable.  Fourthly, the victim was knocked unconscious and most of the attack took place while he was in that condition.  Fifthly, full force was used in the kicks and punches.  Sixthly, the offender persisted in the attack despite intervention by members of the public.  Seventhly, the biting of the victim's genitalia occurred more than once.  Eighthly, lasting damage was done to the victim's eye and penis.  Finally, he was, as has already been described, on licence at the time.  
27.	Mr Hehir draws attention to the mitigation to be found in the fact that no specific other weapon was used, although a shod foot and teeth are themselves, as was said by Lord Taylor CJ in Attorney General's Reference No 47 of 1994, R v Smith 16 Cr App R (S) 865 at the foot of 867, just as much weapons as are weapons more traditionally so described.
28.	Mr Hehir also points out that the offender apologised to the landlord of the public house some time after the incident, and, in the pre‑sentence reports, which were before the sentencing judge and which are before us, he expressed remorse.
29.	Mr Hehir submits that deferral of sentence was outwith the bounds of sentencing options properly open to the judge and an immediate term of imprisonment of sufficient length to make suspension unavailable was the only proper form of sentence for an offence of this kind, committed in the circumstances which we have described by this offender.  It was also submitted by Mr Hehir that, in deferring sentence, the Recorder failed to have regard to the aggravating features and the need to protect the public and society's concern about offences of this nature.
30.	On behalf of the offender, Mr Vaitilingam accepts that this was what he described as "a serious and repugnant offence".  He accepts that it would be very unusual for a non‑custodial sentence to be imposed in relation to such an offence.  But, he submits, the course followed by the learned Recorder, albeit lenient, was not unduly lenient.  He invites the court, even if it concludes to the contrary, to exercise its discretion in favour of not interfering with the course proposed by the learned Recorder and permitting, in two days' time, the possible imposition of a suspended sentence.
31.	In support of that submission, Mr Vaitilingam draws attention to the history of this case in that, although the offence was committed in May of 2002, the offender was not charged until March of 2003 when forensic evidence became available.  The offender was always willing, says Mr Vaitilingam, to plead guilty to the section 47 offence.
32.	Mr Vaitilingam places particular stress upon the many appointments kept in relation to the treatment of the offender's aggression.  Some two hundred such appointments, he suggests, had been kept prior to sentencing.  By today, some three hundred appointments have been kept.  The material before the court, Mr Vaitilingam submits, suggests that some benefit is accruing to the offender from the course which he has been following.  The way in which it is expressed in the most recent report dated 1st June is that "for the most part Mr Doyle has maintained the progress referred to in the Pre Sentence Report", and:
"... work undertaken by Mr Doyle has gone some way towards lowering his risk of reoffending and consequently protecting the public.  The Court permitting this work would continue in a similar fashion until at least October 2004." 
33.	Mr Vaitilingam submits that the court should have regard to the offender's expectations having been raised in relation to the sentence to be passed upon him, both by the initial imposition of a suspended sentence and the subsequent deferral of sentence.  Those matters, Mr Vaitilingam submits, rightly, are pertinent to the exercise of this court's discretion as well as pertinent to consideration of the extent, if at all, to which the course followed by the learned Recorder was unduly lenient.
34.	To all of those matters we have regard.  This was, as we have described it, a serious attack upon a vulnerable man which was sustained, despite the attempted intervention of others, and took a variety of forms of insult to different parts of the victim's body.  Even taking into account such delay as took place before the appellant was sentenced, and even taking into account the steps which the offender had taken by way of attending appointments to seek to deal with his aggression, we have no doubt that the sentence passed by the learned Recorder was an unduly lenient one.  We say that because we would have expected him to pass a sentence of at least four years' imprisonment for this offence.
35.	The question which then arises is whether or not this court should interfere with the sentence which was passed.  In our judgment, it would be wholly inappropriate, having regard to the level of sentence which we have indicated ought to have been imposed in the first place, not to interfere.  We take into account, however, not only the element of double jeopardy, that is to say that the offender is being sentenced a second time, but also the efforts which he has undoubtedly made with a view to improving his behaviour, although only time will tell the extent to which they have an effective result.
36.	In those circumstances, although, as we have said, we would have expected a sentence of at least four years to be passed below, the sentence which we pass in substitution for both the proposed suspended sentence and the deferral of sentence by the learned Recorder, is one of two years' imprisonment, that period of course not being suspended.
37.	MR HEHIR:  My Lord, out of an abundance of caution perhaps, can I ask whether your Lordship expresses any part of that sentence concurrently or otherwise as relating to the concurrent sentences for the affrays and the other matters for which the offender was also dealt with.
38.	LORD JUSTICE ROSE:  Yes, you are quite right, Mr Hehir.  The sentences were suspended in relation to the affrays, were they not, and then deferred? 
39.	MR HEHIR:  My Lord, that is right.
40.	LORD JUSTICE ROSE:  We are not dealing with that.  It is right that you should raise it, but we are dealing with the section 18 offence and that sentence will be served from the date on which the offender surrenders to custody.
41.	MR HEHIR:  I am grateful.
42.	LORD JUSTICE ROSE:  It may be that the most convenient course, as he was anticipating ‑‑ I assume he is not here, is he? 
43.	MR VAITILINGAM:  My Lord, he is not.  I imagine he will be at court tomorrow.  The deferred sentencing for Friday has been brought forward to tomorrow and I imagine he will be there.  Can I say, it is not clear to me, but is it the position that the other matters will remain with the Recorder for sentence tomorrow, or does your Lordship impose concurrent sentences on them now? 
44.	LORD JUSTICE ROSE:  I am not sure, off the top of my head, that we have jurisdiction in relation to affray, have we?  It is an either way offence.
45.	MR HEHIR:  It is, but your Lordships of course have jurisdiction in relation to any sentence passed at the same time as the offence which is the subject of the reference.
46.	LORD JUSTICE ROSE:  Yes.
47.	MR HEHIR:  So your Lordships do have jurisdiction.  I would respectfully suggest that the appropriate course would be to order no separate penalty for the other offences or to impose concurrent terms of appropriate length, not interfering with the overall period of two years that my Lord has just indicated.
48.	LORD JUSTICE ROSE:  Yes.  In place of the suspended/deferred sentences imposed by the learned Recorder, we shall impose concurrent sentences of 12 months' imprisonment in relation to both the affray offences.  Those concurrent sentences will run concurrently with the two year sentence which we pass in relation to the section 18 offence.  Those sentences will start to be served when the offender surrenders to custody, which we anticipate will be tomorrow.
49.	MR HEHIR:  I am grateful.  I apologise for continuing to trouble my Lords.  There are also the other matters of common assault, possession of offensive weapons and the driving matters.
50.	LORD JUSTICE ROSE:  We impose no separate penalty in relation to those, but thank you for reminding me.
51.	MR HEHIR:  I am grateful.