No: 05/2989/A9 
Neutral Citation Number: [2005] EWCA Crim 2320
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 9 August 2005
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE HUGHES 

THE COMMON SERJEANT OF LONDON
HIS HONOUR JUDGE BARKER QC 

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

ATTORNEY-GENERAL's REFERENCE NO 55 OF 2005
(JEFFREY LEE) 
 
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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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(Official Shorthand Writers to the Court)
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MISS SARAH WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL 
MR BARRY GRENNAN appeared on behalf of the OFFENDER
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J U D G M E N T
1.	LORD JUSTICE LATHAM:  This offender is now 18 years of age, 17 at the time that he committed the offence, having been born on 15th December 1986.  On 31st March 2005 he pleaded guilty to one count of wounding with intent.  The matter was adjourned for the preparation of pre-sentence and psychologists' reports.  When the matter came back before the Crown Court on 28th April 2005 His Honour Judge Lyon sentenced the offender to a community rehabilitation order for three years with a condition that the offender should attend an anger management course called CALM.  A community punishment order for 80 hours was imposed and a curfew order for a four-month period.  The curfew was to operate between 9 pm and 7 am.  The Attorney General seeks leave to refer that sentence to this court pursuant to the provisions of section 36 of the Criminal Justice Act 1988; and we give leave.
2.	The circumstances of the offence are as follows.  The victim was a friend of the offender; and on the night in question the two of them had gone out together and with the victim's brother intending originally to go to a golf driving range.  The brother, however, was wanting first to play football and so dropped the victim and the offender off at a public house to wait for him to return.  The victim and the offender had a number of drinks at two public houses.  Eventually, when the victim's brother returned, it was too late to go to the golf driving range and the victim and the offender then went off themselves, the victim firstly to a takeaway for something to eat.  He then rejoined the offender, who was at the time outside the home of another mutual friend.  The victim went up to the offender and jokingly pushed him and called him a "dickhead".  This was intended simply in jest and was not intended in any hostile way.  However, the offender completely lost his temper.  He attacked the victim and clamped his teeth on to the victim's right ear so severely that the ear was eventually torn off.  When that happened, the victim tried to push the offender away.  The offender then bit the index finger of the victim's right hand so hard that subsequently it required substantial stitching.  Unhappily it was not possible to replace the ear, despite attempts by the plastic surgeons to do so.  The victim therefore faces reconstructive surgery, if that can achieve anything for him, over a significant period.  He is now clearly and will always remain to some extent disfigured.
3.	It was a terrible thing that the offender had done and he himself subsequently recognised it.  He was at the time living with foster parents.  He told his foster father when he returned home that night that he had done a terrible thing.  He kept saying, "What's wrong with me?  There's something wrong."  The foster father took him back to the scene, saw the police and told them who had done it.  The offender then disappeared, but he surrendered himself after a short time.  He was interviewed and gave his account of how the incident occurred.  He accepted that he had drunk five pints of lager and two shots of vodka during the evening and that he had been drunk.  He expressed clear remorse for what he had done.
4.	It was in those circumstances that the matter came before the court for plea and was, not surprisingly, put back for reports.
5.	The pre-sentence report told a sorry tale of a seriously disturbed background.  Clearly for a significant proportion of this young man's life he had lived in an atmosphere of violence.  His mother had had which he was living with her seven either partners or husbands.  He was treated with violence by a significant number of them.  He would escape into the streets, where he would roam without any support and was, not surprisingly, ultimately taken into care.  Eventually he was placed with the foster parents, Mr and Mrs Jeffries.
6.	The psychiatric report and the clinical psychologist's report which were before the judge made it plain that that background had seriously damaged this young man.  He was subject to attacks of anger, which were clearly related to his feelings of rejection and the violence which he had suffered.
7.	His position was not helped by the fact that when he committed this offence he was subject to a supervision order which had been imposed in September 2003 for an offence of inflicting grievous bodily harm.  That would appear to have occurred at a time when he was with the Jeffries and they had found him very difficult to deal with.  Subsequent to the making of the supervision order, he had been provided with his own accommodation, but he had found that very difficult to cope with.  He then returned to the Jeffries and was living with the Jeffries when this offence with which we are concerned occurred.  The evidence provided by both the foster parents made it plain that they had seen a considerable change in his behaviour in the period leading up to this offence.  They were concerned about his drinking, but in other respects he appeared to have been anxious to make for himself a sensible future.  It was in those circumstances that the pre-sentence report in particular suggested that there was a real prospect that this young man could benefit from further help beyond a mere supervision order which had clearly been insufficient to address his needs.  It suggested the package of support which the judge ultimately imposed. That was fully supported by the psychiatrist and by the psychologist.  It was in those circumstances that the sentencing judge took what the judge appreciated was an exceptional course in deciding that it was possible to take a further chance with this young man in order to see whether or not he could recovered effectively for society from the mess that his upbringing had created.
8.	There is no doubt, as Miss Whitehouse has submitted on behalf of the Attorney General, that this was a case which would otherwise have cried out for a substantial sentence of detention.  One would not have been surprised had that sentence been somewhere in the region of four to five years.  But it seems to us that there must always be room, even in cases such as this, for a judge, particularly an experienced judge like His Honour Judge Lyon, to be entitled to take the view that there is material before him which justifies the conclusion that the particular case justifies a different course.  On the material before this judge, we consider that he was entitled to do so.  Clearly it was accordingly a lenient sentence, but there was a justification for it here which, as a result, means that we do not consider that it would be appropriate to interfere with it.
9.	There is however an unhappy postscript: unfortunately, the offender has not taken advantage of the sentence that was imposed by the judge.  An addendum to the reports that were provided to the trial judge makes it plain that breach proceedings either have been or are about to be taken which will result in this young man being brought back before Judge Lyon for sentence.  That is, as we say, a sad ending to the story, but that does not, it seems to us, entitle us to conclude that the original order made by His Honour Judge Lyon is one with which this court could properly interfere.  Accordingly the application is refused.