No: 200403191/A2 
Neutral Citation Number: [2004] EWCA Crim 2464
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 6th October 2004
 
B E F O R E:

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

MR JUSTICE RICHARDS 

MR JUSTICE BEAN 

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

ATTORNEY-GENERAL's REFERENCE NO 77 OF 2004 
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL
MR A LONG appeared on behalf of the OFFENDER
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J U D G M E N T
1.	The Vice President: The Attorney General seeks the leave of the Court under section 36 of the Criminal Justice Act 1988 to refer sentences said to be unduly lenient.  We grant leave.  
2.	The offender was born in February 1985 and is, therefore, 19 years of age.  He faced an indictment which contained four counts, all arising from an incident on 5th December 2003.  Count 1 alleged assault occasioning actual bodily harm on a man called Wilcox, count 2, causing grievous bodily harm with intent to a man called Barnes, count 3, affray, carried out in conjunction with a man called Craig Shenton, and count 4, criminal damage at a public house.  At a plea and directions hearing on 1st March 2004 the offender pleaded guilty to count 4 and not guilty to counts 1 to 3.  Shenton pleaded guilty to count 3, which was the only count against him.  On 19th April 2004, which was the date fixed for trial and when witnesses had attended, the offender was rearraigned and he then pleaded guilty to counts 2 and 3 on a particular basis  reduced into writing.  Count 1 was ordered to lie on the file, and the facts in relation to that were opened as being part of the affray on count 3.
3.	On 11th May 2004 His Honour Judge Fish at Minshull Street Crown Court in Manchester sentenced the offender concurrently, on each of the three counts to which he had pleaded guilty, to a Community Rehabilitation Order for a period of two years with a condition of attendance at the Think First Programme, and he made the offender the subject of a curfew order from 9 o'clock in the evening for a period of six months.  He was also ordered to pay to Mr Barnes £1,000 in compensation.
4.	Shenton was sentenced in relation to count 3 to a Community Punishment Order of 180 hours and a curfew order.
5.	In summary what happened was that the offender became involved in an altercation between a friend of his and the doorman of a public house which the two of them were trying to enter.  The offender punched the doorman and, when a friend of the doorman's sought to intervene, he punched him with such force that he fell down.  The offender then ran up to him and kicked him once in the head.  In consequence, the victim sustained deep cuts inside his mouth and two fractures of the jaw which required reparation by the insertion of metal plates.
6.	In a little more detail, these events occurred, as we have said, on 5th December 2003 at a public house in Swinton.  Mr Wilcox was the doorman.  Shenton was involved in a dispute with the landlady and was ejected by the doorman.  He left, making threats.  20 minutes later, at about 11 o'clock, Shenton returned, accompanied by the offender, and the two of them tried to enter the public house.  Mr Wilcox seized Shenton in order to eject him.  There was a struggle.  The offender became involved, punching Mr Wilcox once to the head.  Shenton squared up to Mr Wilcox and lashed out at him.  It was that part of the incident which gave rise to the count of affray.
7.	Mr Wilcox had a friend called Mr Barnes.  He saw what was going on and intervened to pull Shenton away from Mr Wilcox.  As he did so, he was punched by the offender.  The blow was sufficiently strong to push him backwards so that he hit a partition wall and fell.  The offender then ran at him and kicked him in the head, rendering him unconscious.  The attempt to restrain Shenton continued.  He was eventually successfully held by Mr Wilcox.  The offender was still squaring up to Mr Wilcox and shouting, "Let go of him or I will knock you out".  The offender then picked up a freestanding sign from the pavement outside the public house and threw it at a ground floor window in the public house, breaking it.  The police had been called.  Shenton was arrested.  The offender ran off.
8.	In hospital, where Mr Barnes was taken, he recovered consciousness, but he had, as we have said, two fractures to the jaw, and an operation was necessary to insert metal plates.  He also had extensive and deep lacerations inside his mouth.
9.	On 7th December the offender was arrested.  He claimed in interview that he had seen Mr Wilcox "ragging" his friend and had hit him.  When Mr Barnes had come over, he elbowed him to the floor.  He denied punching and kicking him.  He admitted causing criminal damage to the window.
10.	The plea of guilty to count 2, the section 18 offence of causing grievous bodily harm with intent, was entered on a basis accepted by the Crown, namely, that the offender first became involved after Wilcox had grabbed Shenton.  The offender thought Shenton was being manhandled roughly and, when Mr Barnes intervened, the offender punched him and then kicked him once, causing the injuries described.
11.	The offender has one relevant previous conviction.  On 12th September 2002, for an offence contrary to section 20 of the Offences Against the Person Act, he was made the subject of a referral order for ten months and ordered to pay compensation.  The facts were that he was involved in a fight with a friend in drink and punched his victim, causing a cut.  He admitted the offence.
12.	On behalf of the Attorney General, Miss Cheema draws attention to three aggravating features.  First, the kick was administered when the victim was entirely defenceless on the floor.  Secondly, in order to administer the kick, the offender ran up to his victim and kicked him in the head with a shod foot.  Thirdly, there is the previous conviction for violence to which we have referred.  Miss Cheema draws attention to three mitigating features: first, the plea of guilty, albeit entered at the last moment; secondly, the basis of plea, that the offender was attempting to intervene when his friend was perceived to be under attack; and, thirdly, the youth of the offender, to which, at the outset, we referred.  The submissions made by Miss Cheema are that a non-custodial sentence for this offence of causing grievous bodily harm with intent, particularly in the light of the aggravating features, failed adequately to reflect the gravity of the offence, to deter others who might be tempted so to behave in drink, and to protect those employed to preserve public order in public houses.
13.	On behalf of the offender, Mr Long draws attention to the terms of the basis of plea, to which we have referred, and, in particular, to the fact that the offender's involvement was in the course of seeking to help a friend.  Mr Long stresses that the kick was unpremeditated.  The offender is only 19 years of age, and, furthermore, he is hard working, he has a long term girlfriend and this was an experienced judge.  Having regard to all these matters, Mr Long submitted that the sentence passed by the learned judge was not unduly lenient, albeit that it was a merciful sentence.  That part of Mr Long's submission we reject.
14.	It is apparent on the authorities, without going to them in detail, that one would have expected a sentence in the court below in relation to this offence, arising from kicking the head of a man on the ground, when the plea was entered at a late stage, of the order of three years' detention in a young offender institution.  It follows that this sentence was unduly lenient.
15.	The next question, however, is whether or not, that being the case, this Court should now interfere and pass such a sentence as would result in the incarceration of this young man.  Of course, in all Attorney General's References, a discount from the sentence which would have been appropriate in the court below is called for by reason of double jeopardy; that is to say, the offender is being sentenced a second time.  In the present case, a further discount would be required if the Court now sent to detention someone who had hitherto, in relation to this offence, not been deprived of his liberty, and a further discount would be called for for the fact that the offender, as we are told by Mr Long, has already completed five of the six months of the curfew which was imposed upon him and, because he is working, he has paid some £800 of the £1,000 compensation to his victim.  There is the further consideration that, if the offender is now to be incarcerated he will, of course, lose his job and will cease to be able to pay compensation to the victim.   
16.	Bearing in mind the discount from the otherwise appropriate sentence of three years, which would be called for by the matters to which we have referred, it would be inevitable that any sentence of custody which we imposed would be a comparatively short one.  The question, therefore, arises: would the public interest be served by the imposition of a short sentence on this offender at this stage in all the circumstances to which we have referred?
17.	In our judgment, it would not.  Accordingly, in the exercise of our discretion, although, as we have said, we have no doubt that the sentence passed by the learned judge was entirely inappropriate and unduly lenient, we do not, for the reasons which we have sought to express, interfere with it.