No: 200502129 A8 
Neutral Citation Number: [2005] EWCA Crim 2211
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 29th July 2005
 
B E F O R E:

LORD JUSTICE SCOTT BAKER 

MR JUSTICE WALKER 
 
SIR DOUGLAS BROWN 

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R E G I N A 

-v- 

DANIEL GUIRDHAM
 
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MR I DACRE appeared on behalf of the APPELLANT
MR S DENISON appeared on behalf of the CROWN
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J U D G M E N T 
 
1.	LORD JUSTICE SCOTT BAKER:  The offender was born on 28th December 1986 and is therefore 18 years of age.  On 23rd February of this year, he pleaded guilty to one offence of robbery at a plea and directions hearing and was sentenced to a Community Punishment and Rehabilitation Order.  This comprised 80-hours community punishment and a 12-month Community Rehabilitation Order with attendance on the Think-First Programme, not exceeding 60 days in aggregate and a 6-month Curfew Order from 8pm until 7am.  He was also ordered to pay £500 compensation to the victim.
2.	There was a co-defendant called Simon Thompson who pleaded guilty at the same plea and directions hearing to an offence under section 20 of the Offences Against the Person Act 1861.  This offence arose out of the same incident; Thompson had originally been charged with the same robbery, but pleaded guilty to an offence under section 20, the prosecution were prepared to accept this and the indictment was amended accordingly.  He too was sentenced to a Community Punishment and Rehabilitation Order but in his case with 2 years' probation, 80-hours' community punishment and an identical Curfew Order and compensation.  
3.	The Attorney General seeks leave to refer the offender's sentence as being unduly lenient.  No such application is made in the case of the co-defendant Thompson because there is no power to refer a case in respect of a sentence passed under section 20.  Section 20 carries a maximum penalty of 5 years' imprisonment whereas, of course, robbery carries a maximum penalty of life imprisonment.  We are bound to say that we are very surprised that the Attorney General has no power to refer sentences passed under section 20 because, as my Lord pointed out during the course of submissions, there are many cases of section 20 offences dealt with up and down the country and no doubt a frequent number of instances where there is public concern expressed about the level of the sentence passed.  The fact that there is no power to refer under section 20 gives rise to real problems of disparity in the present case, which we shall come to in a moment.
4.	We say straight away that we grant the Attorney-General leave in respect of the offender's sentence in this case.  We turn next to deal with the facts.
5.	The offender and the co-defendant Thompson, approached a young man called ML who is aged 16, albeit 6-foot 3-inches tall and his friend, DU outside the Trinity Youth Centre in Clitheroe on the evening of Guy Fawkes's night last year.  They asked the two boys to go with them to Tesco.  The reason was this: the offender and Thompson had had a very great deal to drink and in the circumstances were unable to purchase alcohol.  So they wanted ML and DU to do it on their behalf.  They had not met before that night.  
6.	Thompson, aged 20 at the time, gave £20 to ML and asked him to purchase alcohol for him.  The offender remained outside and Thompson disappeared somewhere inside the shop.  ML purchased the alcohol and he and the other young man, DU, then waited outside the shop with the alcohol and some change in order to give it to the offender and Thompson.  They did not appear.  A message was passed to a mutual acquaintance that ML was taking the alcohol to his house and that it could be collected there.  ML and DU duly went to ML's house.
7.	Shortly after they had returned, there was a telephone call from a girl to say that a group of people were coming to the house and that the young men should get the drink and go outside.  ML and DU went outside and it was at that point that ML was attacked by Thompson, who struck him in the face with his fist two or three times.  ML was holding a pint glass of coca-cola which smashed as he raised his hand to defend himself from the blow and his face was cut.
8.	It appears that the offender and Thompson were under the mistaken impression that the two young men had deliberately taken their money and/or the drink and that they were not going to be provided with it by them.  In truth the position appears to be this; the offender and Thompson were both so drunk that they were unable to locate the victim at the shop and obtain their drink from him.  ML was knocked to the ground by the blows and whilst he was on the ground, the offender kicked him in the face with his steel capped boot.  He then snatched a silver chain from around the victim's neck.  ML suffered various cuts to his face, including to his chin and ligament damage to his thumb for which he continues to receive physiotherapy.  He had serious damage to two front teeth, one of which will require root canal surgery.  He has, in effect, lost these teeth.  Should the surgery be unsuccessful, he will be required to wear a plate for the rest of his life.  He has missed a good deal of school due to the various visits to hospital and the treatment that he has been receiving and this is in his GCSE year.  He continues to be fearful about leaving his house, as does his friend DU.  
9.	We have seen Victim Impact Statements both from ML and from his mother and these reveal that not only the victim but also the victim's family have been gravely affected by the incident which took place outside the family home.
10.	Thompson was arrested and made frank admissions of the assault.  He denied knowledge of the robbery until after it had occurred.  The offender was interviewed by the police on some three occasions, on each occasion he denied that he had been in Clitheroe on the evening in question and said that he could produce alibi witnesses in support.  He agreed to stand on a video identification parade and when he did so, he was positively identified by both the victim and his friend, DU.  Nevertheless, he continued to deny a presence at the scene of the crime until his plea of guilty at the plea and directions hearing on 23rd February.
11.	Both the offender and Thompson were charged with robbery.  At the plea and directions hearing, Thompson offered a plea to unlawful wounding which, as we have mentioned, was accepted by the Crown.  Mr Dacre, who has appeared before us for the offender as he did below, tells us that it is his recollection that in pleading guilty to unlawful wounding, Thompson was accepting responsibility for causing all of the injuries to the victim.  It is likely that this was indeed so because it is borne 	out by some of the judge's sentencing remarks.  However, it is difficult to see, in the circumstances of this case, how it would be possible to dissociate the cause of the injuries from either the punches or the kick to the face.  At any rate, that is what occurred.
12.	When the offender pleaded guilty, he did so on a written basis of plea.  It is in the following terms:  
"1. Simon Thompson asked the complainant to purchase alcohol on our behalf, we gave him £20.  
2.  However, the complainant disappeared and we went looking for him, we obtained a phone number and attended at his address.  
3.  At no time did the complainant offer to return the drink or the money to either Simon or myself.  
4.  Believing that we had had our money stolen, Simon punched the complainant.  
5.  I accept I ripped a chain from his neck and kicked him.  
6.  It is not accepted that we stole monies."
The prosecution indicated that whilst paragraphs 3 and 4 of the basis of plea were not accepted, they nevertheless did not seek the trial of any issue.  It seems to us very unfortunate that the prosecution accepted a plea by Thompson to an offence of wounding under section 20, when all the statements in the case suggest that this case should have been approached on the basis that it was a joint enterprise attack in which the victim suffered extremely unpleasant injuries.  Be that as it may, the case proceeded on the basis that the judge had to sentence Thompson for an offence under section 20, and the offender for the offence of robbery.
13.	The offender has three previous convictions: harassment in May of 2000 for which he received a conditional discharge, criminal damage in July 2002 for which he received an action plan order of 3 months and assault on a Police Constable for which he was sentenced to a 12-hour Attendance Centre Order in March 2003.  He also has a caution for burglary.
14.	Thompson, who is 21 and some three years older than the offender, has rather more convictions, totalling six in all, but convictions very much of the same nature as those of the offender.  
15.	The judge passed a sentence on the following basis: the offender used his "shod" foot as a weapon, that the case was outside the ordinary run of street robberies, that both the offender and Thompson were intoxicated and that they both mistakenly believed that the victim had wronged them, that Thompson did not intend any injury to have been caused by the glass which was put up by the victim to his face in order to defend himself, that the offender had robbed the victim of his necklace which was subsequently returned and importantly that the offender had administered kicks to the body but they probably caused no significant injury.  It was probably Thompson's punches to the face that caused the victim's injuries.  Finally, the attack involved an innocent and younger victim in the street and that the right sentence, if it were to be a custodial sentence which the offence on its face warranted, would have been 18 months following a trial or 12 months following a plea.  The judge, in saying that, drew no distinction between the offender and Thompson.
16.	He went on to say however that the public would be better protected by the orders that he made than by passing a custodial sentence upon the two men.  If, in saying that the offender administered kicks to the body, the judge was intending to convey the impression that the offender did not kick the victim to the head, then in our judgment he was in error because there is clear evidence in the witness statements, not only from a bystander but also in answer in interview by Thompson that the offender did kick the victim in the head.
17.	On the other hand, the judge appears to have accepted the contention advanced by the plea that Thompson was responsible for the victim's injuries.  In our judgment, the judge was placed in some difficulty in this case in his approach to the sentence by reason of the fact that the Crown accepted a plea in one case to unlawful wounding under section 20 and in the other to robbery, when the reality of the case seems to us to be that this was a joint attack started by Thompson and completed by the offender.
18.	The judge had the advantage of a pre-sentence report on the offender which recites, among other things, the following: 
"[The offender] was insistent that, had he not consumed the amount of alcohol prior to the offence, this incident would not have escalated in the manner that it did."  
The offender was anxious to point out to the Probation Officer that he did not consider himself to have an alcohol problem, and he tended to minimise his own level of responsibility by offering alcohol as a contributory factor.  Although he expressed some bitterness towards the victim stating provocation by the victim, he was able to appreciate how an impact of an incident of this type could have a lasting impact on the victim and others.  The offender was assessed as posing a significant risk to others.  
19.	Since the sentence was passed, we have the advantage of a supplementary report prepared for our benefit which indicates that the offender has attended all the offered appointments bar three, in respect of which he had a perfectly good reason for not attending.  We are told that he has now completed the community punishment element of the offence, he was on curfew during the period on which he was on bail and has now, therefore, served a total of 8 months under curfew and recently he is back at work.  It is pointed out that the order that was made against him was of a particularly intensive type, that it imposed a significant restriction on the offender's liberty and that thus far he has done everything that has been required of him and is plainly making good progress.
20.	Mr Denison, who has appeared on behalf of the Attorney General, submits that this was an unduly lenient sentence and one which fell outside the reasonable discretion of the judge.  He submits that the judge's starting point of 18 months following a trial or 12 months following a plea was, in itself, too low and that an offence of this nature should have carried a sentence of approaching three years following a trial and perhaps up to two years following a plea.  In any event, he submits that the judge was in error in passing a non-custodial sentence.
21.	Mr Denison pointed out what, in his submission, were a number of aggravating features about the offence.  First, that there was gratuitous and excessive violence in a public place, secondly the victim was about 16 years old and defenceless, thirdly that there was a motive of retribution and revenge, fourthly that the attack took place just outside the victim's home and, fifthly most significantly, submits Mr Denison, that this was an offence which followed an episode of binge drinking and that the courts should make it abundantly clear that offences of this kind, following binge drinking which is a recurrent problem, will be dealt with severely by the courts.  Additionally, the offender has a number of previous convictions.
22.	We approach this sentence on the basis that there were indeed a number of aggravating features, as outlined by the Attorney General.  The judge was placed in a difficult position as a result in particular of the concession apparently accepted at the trial, that the injuries were caused by the co-defendant Thompson.  However, in our judgment the really serious nature of what the offender did was to kick the victim in the face with his shod foot.  Steel cap boots are plainly, on any view, a weapon.  In our judgment, it is not of great consequence who caused what injuries in this case, of much more significance is what the offender actually did when there had already been an attack by his co-defendant, Thompson, and the victim was on the ground.  
23.	This was not a street robbery of the kind with which the courts are all too familiar where the target is a stranger's belongings.  This was a revenge attack that was completely unjustified and fuelled by the excessive consumption of alcohol on the part of the offender and his co-defendant, Thompson.  In our judgment, the custodial sentences mentioned by the judge of 18 months following a trial of 12 months following a plea, would have been, if anything, on the low side bearing in mind the severity of the violence.  The gravtiy of the offence lay, in our view, in the gratuitous violence more than the taking of the chain which was, we were told, eventually returned to the victim. 
24.	We have come to the conclusion that in all the circumstances, this was an unduly lenient sentence and that the judge should have imposed an immediate custodial penalty on both this offender and the co-defendant, Thompson, in respect of whom there is no reference before the court.  That, however, is not the end of the matter because it remains for the court to consider whether, in the exercise of its discretion, it is now appropriate to impose a custodial sentence.  
25.	We have come to the conclusion that it would not be appropriate and we have done so for two reasons; first, if an immediate custodial sentence is passed on the offeder, there there would immediately be a very significant and, in our judgment, quite unjust disparity between the offender and Thompson.  Secondly, it is plain that during the four month period that has passed since the sentence was imposed, the offender has made very considerable progress and indeed has done everything that has been expected of him.  In these circumstances, it seems to us that it would not be in the public interest to terminate that community penalty and impose a custody alternative.
26.	For these reasons, having held that this was an unduly lenient sentence, the court declines to vary it.