No: 200401741/A7
Neutral Citation Number: [2004] EWCA Crim 2644
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 7th October 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

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 32 OF 2004    
 
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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)
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MR C HEHIR appeared on behalf of the ATTORNEY GENERAL
MR R HARRISON 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 is 21.  He was born in May 2003.  On 21st November 2003 he pleaded guilty to wounding with intent to do grievous bodily harm.  That was the first of three counts in the indictment, all of which arose from the same incident.  Counts 2 and 3 were not proceeded with so far as this offender was concerned.
3.	There was a separate allegation of wounding with intent a different victim, which was ordered to lie on the file, and an allegation of violent disorder upon which no evidence was offered. A co-accused called Kelly, who was 17, was jointly charged with the offender on all counts. He pleaded guilty at a later date to violent disorder.
4.	The offender was sentenced on 23rd February 2004.  In addition to the count of wounding with intent there was also an offence of affray, which was entirely unrelated and in relation to which he had pleaded guilty before the magistrates and had been committed for sentence.  He was sentenced by Mr Recorder Blomfield at Peterborough Crown Court, to 2 years' detention in a young offender institution for wounding with intent and to a concurrent term of 12 months' detention in a young offender institution for the offence of affray.  The total sentence imposed was therefore one of 2 years' detention.  The co-defendant, Kelly, received a 12 month supervision order.
5.	In summary, so far as the more serious of these offences is concerned, the offender struck the victim in the front of the neck with a beer bottle which he, the offender, had deliberately broken beforehand.
6.	In more detail, the victim was a Mr Walden.  He and his partner, Miss Brown, on 8th March 2003 were visiting Mr Walden's sister, Donna, and her partner, Lee Simpson.  The purpose was to celebrate the birthday, on the following day, of Mr Walden.  They went to a public house.  They took with them the 6 month old baby of whom Donna Walden and Lee Simpson were the parents, in a pushchair.  They were also accompanied by Martin Walden, who was the 16 year old nephew of Mr Walden and his sister, Donna.  The excursion to the public house was uneventful.  They left in order to return home at about 9.30 in the evening.  Their route took them past the home, in Sapley Park, of a woman called Victoria Wright, which was a popular meeting place for a number of local youths, including the offender and Andrew Kelly.
7.	The offender had been there that evening from about 8.30 pm.  Alcohol and cocaine were being consumed.  As Mr Walden and his group approached the premises in Sapley Park the three men, pushing the pushchair, were a little ahead of the two women.  They encountered a group of some four or five agitated youths with whom there was a verbal exchange.  Mr Walden and Mr Simpson were trying to calm the youths down.  While this was going on still more youths emerged from the house, as Mr Walden described them, "coming out like bees from a bees' nest". The offender was not one of that group.  At that stage he was still inside the house.
8.	Following the verbal exchange between the two groups, Mr Walden and Mr Simpson walked off round the corner.  But by this time the two women in their party had reached the point where the youths were gathered.  They were subjected, in their turn, to verbal abuse by the group of youths, one of whom struck Donna Walden in the head, knocking her to the ground unconscious.  Mr Simpson and Mr Walden returned to the aid of the women.  Mr Simpson was set upon by the youths, who punched and kicked him.  The co-accused, Kelly, was part of that group and, as we have said, he was dealt with for violent disorder in relation to what then transpired.  Mr Walden went to the assistance of Mr Simpson, who by this stage was on the ground.  He seized one of the youths who was still attacking Mr Simpson and struck him twice.  But the youth continued to attack Mr Simpson.  It was, at that stage, that the offender emerged from the house.  He was carrying a beer bottle.  He smashed it on the kerb.  He walked to Mr Walden and struck him in the neck with the broken beer bottle, with the consequences to the front of the neck which are depicted in the photographs which are before the Court.  He then returned to the house, handing to its owner the broken bottle and telling her to get rid of it.  She threw it over her garden fence. When it was subsequently recovered and forensically examined, bloodstaining from the offender was found on the outside of the neck of the bottle and bloodstaining from Mr Walden was found on the inside.
9.	Mr Walden was taken to hospital.  He had four separate lacerations to his neck and head and one to his right hand requiring stitching. The most serious injury was a 4 centimetre laceration at the front of his neck, which required surgical treatment.  He had also been struck over the head with a wine bottle, but the prosecution accepted that neither the offender nor Kelly was responsible for that part of the violence to him.  Mr Simpson was also attacked with a broken bottle and he suffered a number of lacerations, the most serious to the left side of his neck, and that also is depicted in the photographs which are before the Court.
10.	So far as the attack on him was concerned, as we have indicated, an order was made in relation to count 2 that it should lie on the file.  Donna Walden also suffered cracked ribs during this incident.
11.	The offender was arrested on 11th March 2003 and, when cautioned, he replied: "This is fucking bollocks, I ain't done fuck all".  He was interviewed and made no comment.  He was released on bail and again interviewed on 11th September.  Again he made no comment and he made no reply when he was charged.  He entered his plea of guilty to the offence of wounding with intent on the first occasion which was open to him. At that time Kelly, the co-accused, pleaded not guilty to the counts against him.  The matter was then adjourned for trial against the offender and Kelly in relation to the outstanding counts.  When the matter was listed for that purpose, on 2nd February, Kelly, as we have said, pleaded guilty to violent disorder and the prosecution decided not to proceed any further against the offender.  The case was adjourned for sentence.
12.	The offender's plea had been accepted on the basis that he had not, as we have already said, been part of the group of youths who were initially involved in the confrontation with Mr Walden and his group, but had joined in once the incident was underway.  He accepted that he had smashed the beer bottle and stabbed Mr Walden in the neck with it.
13.	So far as the offence of affray is concerned, that was committed on 24th July 2003, during the period when, as will be recalled, the offender was on bail in relation to the offence of wounding with intent.  The affray took place when the offender and a co-defendant were together with a number of other youths, in a park, in a village near Huntingdon.  The offender accidentally spilt some of a bottle of whiskey which was being passed from hand to hand over himself.  One of the others laughed.  The offender took exception.  The co-defendant attacked the youth, punching him repeatedly and kicking him and the youth ran to his car.  The offender picked up a seven foot pole with which he smashed all four of the windows of the victim's car.  The offender and co-defendant were arrested at the scene soon afterwards.  Again, the offender made no comment.  But he pleaded guilty, as we have said, to that offence on 14th January 2004 and was committed for sentence.  The co-defendant, dealt with by the magistrates, also pleaded guilty and was sentenced to a period of 5 months in custody.
14.	The offender has three previous convictions:  in August 2000, when he was 17, a community sentence order was made for common assault.  The offence occurred when the offender was on a train and pushed and punched another passenger in the face. In July 2001 he was conditionally discharged before the magistrates for an offence of criminal damage, which involved the forcing of a cupboard door and the breaking of its windows.  In March 2002, at Northampton Crown Court, he was sentenced to 30 months' detention in a young offender institution for unlawful wounding.  That offence involved the repeated kicking of his victim in the head while he was on the ground, causing him to lose consciousness and to suffer a broken nose and teeth, cuts and bruising.  The offender was released from the 30 month sentence on 7th February 2003, that is just a month before he committed the offence of wounding with intent.  He was, at that time, and indeed at the time when he committed the offence of affray, on licence in relation to the earlier sentence, the unexpired portion of which was 289 days.
15.	In relation to that, as is apparent from what we have already said, the learned Recorder chose not to exercise his powers under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.  There was a pre-sentence report before the Recorder.  The offender acknowledged that he had problems with drinking and its effect on his behaviour.  There was, as the author of the report commented, a pattern of increasingly violent offending and the offender had little insight into his behaviour.  He was assessed as presenting a medium to high risk of offending and presenting a high risk of harm to the public.
16.	The learned Recorder commented, in passing sentence, that the bottle had been deliberately smashed and used as a weapon.  He commented that this was a serious offence committed while on bail.  He spoke of the need for the court to send a clear and unequivocal message that the public were entitled to be protected.  With all of those observations we agree.  He indicated that his starting point for the sentence of wounding with intent had been two-and-a-half years, but taking into account the plea of guilty that would be reduced 2 years.  To the validity of those observations we shall shortly return.
17.	On behalf of the Attorney-General Mr Hehir draws attention to a number of aggravating features:  first, the bottle was used as a weapon; secondly, it was deliberately broken for the purpose; thirdly, the attack was unprovoked; fourthly, there were the previous convictions to which we have referred, and fifthly, the offender was, as we have said, on licence and had only shortly previously been released from custody.  
18.	Mr Hehir draws attention to two mitigating features: first, the plea of guilty at the first opportunity, and secondly, the offender's youth.  But Mr Hehir submits that the sentence passed failed properly to reflect the seriousness of all this conduct and its aggravating features. In particular, the sentence for the offence of affray ought to have been ordered to run consecutively to that for the offence of wounding with intent which was, in any event, inadequate. Furthermore, submits Mr Hehir, an order ought to have been made under section 116 in relation to the unexpired period of the previous sentence.
19.	A number of authorities are referred to in the Reference.  They include Attorney-General's Reference No 24 of 1998 (R v Pope) [1999] 1 Cr App R(S) 278, Attorney-General's Reference No 14 of 2000 (R v Boffey) 2000 1 Cr App R(S) 55 and Attorney-General's Reference No 25 of 2002 (R v Mentlak) [2003] 1 Cr App R(S) 130.  In the light of those authorities Mr Hehir submits that, for a contested case of 'glassing', the appropriate tariff is between 4 and 6 years.  He submits that the courts take a particularly serious view if a glass or bottle is broken deliberately before it is used.
20.	On behalf of the offender Mr Harrison accepts that two-and-a-half years, as a starting point, was undoubtedly low and inconsistent with the authorities.  But, he submits, 2 years was not unduly lenient for the section 18 offence.  He stresses that the offender pleaded guilty at the first opportunity, thereby displaying courage and calling for the maximum discount from what would have been the appropriate sentence following a trial.  Mr Harrison further submits, by reference to the terms of sections 35 and 36 of the Criminal Justice Act 1988 that, as the offence of affray is not triable solely on indictment, this Court has no power to interfere with the sentence passed in relation to that offence.  Furthermore, he submits, by reference to the terms of those sections, that the trial judge's failure to exercise his powers under section 116 does not give rise to any power in this Court to make an order that any part of the unexpired portion of the sentence, in relation to the earlier offence, should be ordered to be served.  
21.	In order to examine the validity of that submission it is necessary, first, to rehearse the provisions, so far as they are relevant, of sections 35 and 36.  Section 35(3): 
"This Part of this Act applies to any case-  
(a) of a description specified in an order under this section; or 
(b) in which sentence is passed on a person-  
(i) for an offence triable only on indictment; or 
(ii) for an offence of a description specified in an order under this section. 
... 
... 
 (6) In this Part of this Act 'sentence' has the same meaning as in the Criminal Appeal Act 1968, except that it does not include an interim hospital order under Part III of the Mental Health Act 1983 and 'sentencing' shall be construed accordingly." 
Section 36(1): 
"If it appears to the Attorney-General-  
(a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and 
(b) that the case is one to which this Part of this Act applies, 
he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may- 
(i) quash any sentence passed on him in the proceedings; and 
(ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him." 
In our judgment, Mr Harrison's submissions, in relation to the Court's powers with regard to the offence of affray not triable solely on indictment, and in relation to the exercise of powers under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, do not withstand examination of the provisions of sections 35 and 36.  It is to be noted, in particular, that those provisions are widely couched by reference to "the case", words which appear in both section 35(3) and section 36(1).  It is to be noted that, in reviewing the sentence in a case the Court has, by virtue of section 36(1) the power to (i) quash any sentence passed on him in the proceedings, and (ii) to pass such sentence as they think appropriate for the case and as the Court below had power to pass when dealing with him. Furthermore, in our judgment, the fact that the learned Recorder did not exercise his powers under section 116 does not preclude this Court from exercising these powers.  This Court has, by section 36(1(ii), all the powers of sentencing which are vested in a Crown Court judge.  We accordingly reject Mr Harrison's submissions based on the construction of the statute.
22.	Mr Harrison also sought to pray in aid the sentence of 12 months supervision passed on the co-accused, Kelly. Bearing in mind that he was being dealt with for one offence of violent disorder, whatever the history, as we have sought earlier briefly to outline it in relation to the tendering of pleas, that sentence does not avail this offender any argument based on disparity, if this Court were to increase the offenders sentence.  
23.	Accordingly, we return to the question, first, as to whether the sentence passed by the learned Recorder was unduly lenient.  We unhesitatingly are of the view that it was.  We have already indicated Mr Harrison's acceptance that the learned Recorder's starting point of two-and-a-half years was conspicuously too low in the light of the authorities.  We bear in mind that the offender was, we are told, released, under the early release provisions from the sentence which he is serving, on 17th June 2004.  Accordingly, in addition to the discount which is appropriate for an offender on an Attorney-General's Reference for double jeopardy (because he is being sentenced a second time) a further discount is called for in relation to the fact that, by virtue of the sentence we are about to pass, the offender having been released from custody, will have to return to custody.  In our judgment, the sentence for the section 18 offence, in the court below, ought to have been at least three-and-a-half years' detention in a young offender institution.  In addition, the learned Recorder ought to have passed a significant consecutive sentence for the offence of affray.  In addition, having regard to the history of matters and the nature of the offending to which we have already referred, the learned Recorder ought also to have required the offender to serve substantially the whole of the unexpired portion of his earlier sentence.  Accordingly, taking all those matters into account, and quashing the orders made by the Recorder, the sentence which we pass in relation to wounding with intent is one of 2 years' detention in a young offender institution. Consecutively to that there will be a period of 12 months such detention for the offence of affray.  The total sentence therefore, in that regard, is one of 3 years' detention in a young offender institution.  However, we order that, prior to the service of that sentence, the offender will serve a period of 9 months in relation to the unexpired portion of the earlier sentence. The net result therefore is a total period of 3 years and 9 months composed in the way which we have indicated.
24.	MR HEHIR:  My Lords, bearing in mind that the Court is aware that the offender is currently at liberty, does the Court wish to consider making an appropriate order for the time and place that he should surrender to custody? 
25.	THE VICE PRESIDENT:  Mr Harrison, have you got any instructions where he is and when he could surrender?
26.	MR HARRISON:  No my Lord, all I do know, I think I know - I will check - he lives in Huntingdon. Let me check.  I know the solicitor's file is here.  We are sure as we can that he lives in Huntingdon, it is somewhere in the file.  I am sorry I have not the information.
27.	THE VICE PRESIDENT:  We shall order that he surrender at a police station in Huntingdon not later than noon on Monday and, as from the date on which he does surrender, then his sentence will continue to run.
28.	MR HARRISON:  Thank you, my Lord.