No. 2006/01881/A7

Neutral Citation Number: [2006] EWCA Crim 1715
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  22  June  2006

B e f o r e:

LORD  JUSTICE  KEENE

MR  JUSTICE  CRANE

and

SIR  JOHN  BLOFELD

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R E G I N A

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MR R M SHELDON appeared on behalf of THE APPELLANT

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J U D G M E N T

Thursday  22  June  2006

LORD JUSTICE KEENE:  I will ask Sir John Blofeld to give the judgment of the court.

SIR JOHN BLOFELD:
1.  On 17 January 2006, at Doncaster Crown Court, the appellant pleaded guilty to kidnapping and assault occasioning actual bodily harm, having earlier pleaded not guilty to those offences.  He was remanded in custody for sentence.  On 27 March 2006, for the offence of assault occasioning actual bodily harm he was sentenced to Detention for Public Protection for 261 days as a minimum term pursuant to section 226 of the Criminal Justice Act 2003.  For the kidnapping he was sentenced to 18 months' detention concurrent.  The judge also ordered that twelve days spent in custody on remand should count towards his sentence.  The appellant now appeals against that sentence by leave of the single judge who, in giving leave, stated: 

"It is fairly arguable that an extended sentence is the appropriate one in all the circumstances of this case"

2.  There were two co-defendants, a relative (TC) then aged 34, and the driver of the car, HF, who was associated with TC.  HF pleaded guilty to assisting an offender and was sentenced to a community sentence.  TC pleaded guilty to both the kidnapping and the assault occasioning actual bodily harm.  She was sentenced to 18 months' imprisonment.

3.  The parties knew each other.  In the early hours of the morning of 9 August 2005, at about 2am, the complainant, Mandy Vickers, aged 19, was in the Hesthorpe district of Doncaster, walking along the road.  She was accosted by TC who abused her.  The complainant ran off.  She then heard this appellant call her name.  She stopped to talk to him.  She noticed that he was holding a rowing paddle.  A few minutes later a car drove up and TC approached.  She punched Mandy Vickers in the face, punched her another three or four times and said, "You're going in the boot".  The appellant joined in the threat.  In the end the complainant was not put into the boot but into the back seat of the car next to the appellant.  While driving along the car stopped and the appellant and TC changed places.  TC clearly believed that the complainant had stolen money from a relative of hers.  She demanded money from her and continued to punch her.  Eventually they arrived at a caravan site where the complainant was staying because she said that there was money there which she could get for them.  Before they reached the caravan the car stopped in an area of wasteland.  Mandy Vickers was dragged from the car and assaulted by TC and by the appellant, who both used their fists and feet.  She was told that she was going to get the beating of her life.  She was pulled further into the waste area and the beating continued.  At one stage she was hit by the appellant with the rowing paddle.  He threatened to smash a piece of concrete over her head.  After that violence she was taken back to the car and they drove to the caravan.  The complainant went inside to obtain money.  The others followed.  Further violence was used in the caravan.  No money was forthcoming.  The claimant was allowed to go into her bedroom and clean herself up.  There she found a mobile telephone and she dialled 999.  The offenders left the caravan, smashing its windows as they did so.  They threatened to return with shooters and knives.  They said, "We'll blow up your caravan with you in it if you report this".

4.  The complainant was taken to hospital.  Her injuries were fortunately not as severe as might have been anticipated.  She had a one inch split to the bridge of her nose, two swollen eyes, bruised ears and bruises to her forehead.

5.  At the time the appellant was 14 years old.  He had previous findings of guilt for assault and assault occasioning actual bodily harm.

6.  There were a large number of reports before the court.  The judge dealt with those reports in his sentencing remarks.  He had before him two pre-sentence reports from two separate probation officers, each with an addendum.  He also had a psychological report and a psychiatric report.  The judge reminded himself of the statutory framework of the Criminal Justice Act 2003.  He quoted a number of passages from the reports before him.  It is clear that both probation officers were concerned at the risk that the appellant posed not only to himself but also to members of the public.  The second of the two probation officers, Karen Jackson, of the Doncaster Youth Offending Service, identified the appellant as posing a high risk of serious harm.  She said that action should be taken in the near future and the case would need additional supervision and monitoring.  Another probation officer, Jackie Talbot, stated:

"Given [the appellant's] continued involvement in violent offending and the increase in seriousness, I would assess that he now poses a high risk of committing further offences and a high risk of causing serious harm."

7.  Subsequent to the dates of those reports, there was a psychological report dated 2 February 2006 prepared by Mr Prebble, a Chartered Psychologist with a Postgraduate Diploma in Education Law, a Postgraduate Certificate of Education, and a Diploma in Educational Psychology.  In his initial report Mr Prebble took the view that the appellant was a major risk both to himself and to others unless some sort of supervision or therapy could be implemented.  He filed an addendum to his report a day or two before the sentencing hearing.  He then stated that the appellant had made good progress during the initial stages of a referral order and especially when placed in local accommodation.  He spoke of the undesirability of an indeterminate sentence, which, in his judgment, was likely to make the appellant a hardened criminal, which would not lead to any satisfactory level of re-integration in the wider community.  He said: 

"I do share the view expressed earlier in this report that a period of custody in a secure training centre may well offer him the chance to get away from the family pressures and to develop a level of personality and associate skills that will allow him to become a competent member of the wider society."

8.  Finally, before the sentencing judge there was a report from a forensic psychiatrist, Dr Gwilym Hayes, dated 23 March 2006.  He noted that the probation service considered that the appellant posed a high risk of committing further offences and a higher risk of causing serious harm.  He said this at paragraph 13.5 of his report:

"I note that both the probation service and the psychologist who assessed him are of the opinion that he poses a serious risk to others ...."

(The psychologist was Mr Prebble, but when he wrote his report Dr Gwilym Hayes had not had the advantage of reading the addendum report.)  Dr Hayes continued:

".... particularly if he stays within the same environment as he is at the present time.  .... I would point out that [the appellant] retains the capacity to change, particularly as he matures over the next few years and his hyperactivity diminishes.  If he takes advantage of the increasing stability, then it is not inevitable that he will continue to offend in such a serious manner."

9.  Those were all the reports that were before the trial judge.  He was presented with a case of considerable complexity.  He properly directed himself in relation to the different sections of the 2003 Act.  He appreciated that, whereas kidnapping was a "serious" specified offence under section 15 of the Act, assault occasioning actual bodily harm is a "specified" offence.  He was, therefore, not entitled to pass a sentence for public protection in respect of the assault occasioning actual bodily harm which, on the facts of this case, was in some ways the more serious of the two offences, although the kidnapping was also a very serious offence.  He came to the conclusion that the appellant was both a danger to himself and, far more significantly, a danger to the public at large.  

10.  It is with that background that we turn to consider some of the matters stated by the Vice President in the well-known case of R v Lang and Others [2005] EWCA Crim 2864.  In paragraph 14 the Vice President stated:

"In relation to offenders under 18 on conviction, provision for extended sentences is made by section 228.  An extended sentence of detention, comparable to that of imprisonment for those under 18 or over on conviction, must be imposed where a specified (though not necessarily serious) offence is committed ...."

Then at paragraph 17 the Vice President said:

"....

(vi)  In relation to offenders under 18 and adults with no relevant previous convictions at the time the specified offence was committed, the court's discretion under section 229(2) is not constrained by any initial assumption such as, under section 229(3), applies to adults with previous convictions.  It is still necessary, when sentencing young offenders, to bear in mind that, within a shorter time than adults, they may change and develop.  This and their level of maturity may be highly pertinent when assessing what their future conduct may be and whether it may give rise to significant risk of serious harm.

(vii)  In relation to a particularly young offender, an indeterminate sentence may be inappropriate even where a serious offence has been committed and there is a significant risk of serious harm from further offences (see, for example, R v D [2005] EWCA Crim 2282)."

11.  In his sentencing remarks the judge referred to Lang.  It is not clear whether he had D in front of him or not.  D sets out no new principle, but the facts related to a female aged 13 at the time of committing serious offences.  This appellant was 14 at the time of these offences.  

12.  Since the trial this court has received and read a two-and-a-half page report by Mr Peter Wilkinson, a seconded probation officer at Her Majesty's Young Offender Institution Castington, where this appellant is serving his sentence.  He sets out that the appellant was a difficult young man who had four demerits for minor matters during the early days of his arrival at that institution.  Mr Wilkinson writes:

".... it is clear that he is becoming aware of the nature of his current sentence and the process that must be followed if he is to be approved for release.  In his own mind he is setting targets for what he must do.  He feels he is now getting into the regime and in his words is starting to 'grow up'.  He realises his behaviour must improve if he is to achieve his target of Enhanced on the IEP regime, and be trusted by Unit Staff."

13.  This court is faced with a young boy who behaved disgracefully on this occasion, had committed previous incidents of violence and was assessed by experienced probation officers as being dangerous to himself and others.  When other professionals came in they seem to have watered down the conclusions of the probation officers.  There are, in our view, sufficient signs to indicate that the appellant is not only capable of improvement but is improving.  This is very much a borderline case which turns on its own facts.  

14.  In the view of this court justice can be achieved by quashing the existing sentence and replacing it with an extended sentence.  It is interesting to notice that at the end of his sentencing remarks the judge clearly was sufficiently concerned to set out what his extended sentence would have been if he had not passed a different form of sentence.  Our conclusion is very similar to his; but is a slightly longer extended sentence.  In the view of this court, the proper way to deal with this difficult matter is to quash the existing sentences and to impose an extended sentence of five years and six months, with a custodial term of 18 months and a four year extension period.  That will be for the offence of kidnapping, and there will be a concurrent sentence of 18 months for the assault occasioning actual bodily harm.

15.  LORD JUSTICE KEENE:  The extended sentence is passed under section 228 of the 2003 Act.  

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