Case No: 200604891/A6 
Neutral Citation Number: [2006] EWCA Crim 3335
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 8th December 2006
 
B E F O R E:

LORD JUSTICE KEENE 
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)

MR JUSTICE WALKER 

THE RECORDER OF BIRMINGHAM 
(Sitting as a Judge of the CACD)
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL's REFERENCE NO 101 OF 2006    
 
(P) 
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Computer Aided Transcript of the Stenograph Notes of 
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MR C AYLETT appeared on behalf of the ATTORNEY GENERAL
MR F LIVESEY appeared on behalf of the OFFENDER
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J U D G M E N T 

1.	LORD JUSTICE KEENE:  This is an application, under section 36 of the Criminal Justice Act 1988, by Her Majesty's Attorney‑General for leave to refer a sentence to this Court because it appears to him to be unduly lenient.  We grant leave and we treat therefore this as the hearing of the Reference.
2.	The offender was at the time of sentence aged 17.  He pleaded guilty on 4th September 2006, at Barrow Crown Court, to two offences, one of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, and the other, on a separate indictment, to assault occasioning actual bodily harm, contrary to section 47 of that Act.
3.	He had three days earlier, on 1st September 2006, been dealt with by the Barrow‑in‑Furness Youth Court for an offence of affray and on that occasion had been made subject to a 12 month supervision order, with conditions including one making him subject to an intensive supervision and surveillance programme (ISSP).
4.	In the light of that, Her Honour Judge Lunt, in the Crown Court on 4th September, decided to defer sentence for the two offences in question until 23rd February 2007, that is to say for a period of about 6 months.  She stated in the course of the sentencing process that the magistrates, by making their order on 1st September had "somewhat tied my hands" and that perhaps one should see if the ISSP was going to work.  She made it clear that if the offender failed to comply with the ISSP, or committed any other offence she would impose a custodial sentence in due course, but that if he complied in full and committed no further offence during that 6 months, she would pass a sentence which would not mean that he would lose his liberty at once.
5.	"Deferral" of sentence is itself a sentence for the purposes of the Criminal Appeal Act 1968, section 50 and so is subject to the procedures whereby the Attorney‑General can refer a sentence to this Court because he believes it to be unduly lenient (see Attorney‑General's Reference No 22 of 1992 (1993) 14 Cr App R(S) 435).
6.	The facts of the two offences can be briefly described.  The earlier in time was the assault occasioning actual bodily harm.  On 24th December 2005 the offender, along with two other young men, attacked a man called Robert Taylor in the town centre of Barrow, in the early hours of the morning.  It was a prolonged attack.  The victim was kicked to the face and body and when he tried to escape via a nightclub he was refused entry and was then attacked again by the offender and one of the other two.  Again he was kicked.  He ended up with a cut to his left eye, a number of bruises, abrasions to the centre of his forehead and grazes to his knees and elbows.
7.	The section 18 offence arose out of events on 9th April 2006, when he was on bail.  The victim in this case was a man called Glen Turner.  A dispute had arisen between his 15‑year old son, Sam, and the offender's family.  It was said that threats had been made to Sam Turner.  In any event, on the day in question Glen Turner and two friends went to a house in Ramsgate Crescent to speak to a man called Atkins, who was believed to be behind the threats.  In fact the offender was in the house. There was no trouble inside the premises, but Glen Turner heard someone shouting from outside and he went out.  While he talking to a man outside, the offender ran out of the house, with what was thought to be a baseball bat but seems now to have been a large piece of wood.  Glen Turner had his back to him.  The offender ran up to him and struck him over the back of the head with the wood.  There was one blow struck.  It was clearly struck with some force because Mr Turner fell to the ground and, according to a number of witnesses, was rendered unconscious.  There had been no violence in the incident before this, but the basis of the plea, accepted by the Crown, was that the offender reacted on the spur of the moment to the presence of the men.  
8.	Glen Turner was taken to hospital.  He suffered a fracture of the right cheekbone, a laceration to the forehead and an injury to the right eye.  That last injury proved to be especially serious.  It consisted of damage to the optic nerve, which has meant an irreversible 80 per cent loss of vision in that eye.  That in turn has meant that Mr Turner cannot drive and has to change his job and his life has clearly been very seriously affected.
9.	The offender pleaded guilty to both these offences on 4th September 2006, the day fixed for the trial of the section 18 offence.  He had been on bail for those offences at the time of the affray, for which he was sentenced by the Youth Court three days earlier.  Put shortly, that affray charge came about because he was involved then, in July 2006, in a fight outside a pub, during which he struck a man, again, with a piece of wood.
10.	The offender was born on 25th February 1989.  Despite his youth, he has accumulated a number of previous convictions, apart from the affray and the two offences with which we are concerned today.  Some of those are offences of violence.  In 2003 he was convicted of three offences of common assault.  In 2004 he was convicted of a public order offence.
11.	The Attorney‑General takes the view that the deferral of sentence in the Crown Court was an unduly lenient sentence which failed to take account of the seriousness of the offences, particularly the section 18 offence.  That, Mr Aylett, for the Attorney‑General reminds us is a serious specified offence for the purpose of sections 226 and 228 of the Criminal Justice Act 2003.  Both the section 47 offence and indeed the affray are specified offences under that Act.
12.	There was material, here, it is submitted, indicating that this offender presents a significant risk to members of the public of serious harm by the commission of further specified offences.  Deferring sentence holds out the prospect, as was made clear by the judge, of a non‑custodial disposal, if the offender behaves well during the 6 months of deferral.  That is wrong in principle, contends Mr Aylett, for so serious an offence as grievous bodily harm inflicted with intent.  This was a vicious attack with a weapon, with very serious consequences for the victim.  Moreover, the offender was on bail for the actual bodily harm offence at the time, as indeed he was at the time of the affray on 19th July.  Mr Aylett draws attention to the fact that that affray, again, was one where the offender used a weapon, a piece of wood on that occasion with nails in it.  He did so despite the serious consequences of his earlier attack in April on Glen Turner.  Those have to be added, it is said, to his previous convictions for common assault.
13.	Consequently, on behalf of Attorney‑General it is submitted that the judge here should not have deferred sentence but should instead passed either a sentence of detention for public protection under section 226 of the 2003 Act or an extended sentence of detention under section 228.  Mr Aylett recognises that there was also the possibility of a detention and training order but that comes very much as a last resort in the Attorney's case.
14.	On behalf of the offender Mr Livesey submits that this was an unusual case, given the making of the ISSP.  It is not surprising, he says, that the Crown Court considered the possibility of allowing that earlier order to take effect.  If the order is allowed to stand and the matter comes before Judge Lunt in late February, she will be able to take into account all the matters now relied on by the Crown.  The latest report on the offender since his appearance in the Crown Court is very relevant.  Mr Livesey draws attention to the fact that it notes that the offender has increasingly begun to work with the social workers rather then against them.  With his difficult family background it is not surprising that it took some time for him to respond to the order.  Such reoffending as there has been since the order was made has not consisted of violence to the person.  It is emphasised that the offender is still young and therefore the intensive supervision may prove to be successful.
15.	If the sentence were to be held to be unduly lenient, then it is contended that an indeterminate sentence would be unusual and inappropriate for someone of this age.  A detention and training order would be adequate here.
16.	We say at once that this is a case where the judge should not have seen her hands as being tied by the magistrates decision to go for a supervision order with an ISSP.  That decision had been made only three days before.  It had scarcely taken effect.  The magistrates had not been dealing with offences of the gravity with which the Crown Court judge had to deal.  The judge therefore should have approached this sentencing task untrammelled by the magistrates' decision.  
17.	Nor, in our judgement, was deferral the right decision in the circumstances of this case.  The Sentencing Guidelines Council in its advice, "New Sentences:  Criminal Justice Act 2003", suggests at paragraph 1.2.7 that deferral should be predominantly for a small group of cases at either the custody threshold or the community sentence threshold.  While that advice was given in respect of adult offenders it is relevant, in our view, also to young offenders.  Any deferral of sentence clearly involves the message that compliance with whatever is required of the offender during the period in question will lead to a lesser category of sentence, in this case a non‑custodial one, as the judge made clear.  Deferral in a case like the present would therefore only be appropriate if a non‑custodial sentence was a proper and realistic possibility on the facts of the case.  We cannot see that that was the situation which existed when the decision to defer was made in early September.
18.	True it is that this young man had some mitigation. The pre‑sentence report provided to the Youth Court and available to the Crown Court reveals a difficult upbringing with a background of domestic violence, and with him suffering from attention deficit hyperactivity disorder.  He experienced a number of exclusions from school and had been unemployed since leaving school in July 2005. The PSR referred to his history of physical aggression because he has difficulty controlling his impulses.  
19.	So far as the section 18 offence is concerned, the basis of plea was that he struck only one blow and did so in reaction to the presence of the men.  Above all he has his age, 17, as an important mitigating factor as well as his pleas of guilty.
20.	However, having said that, this Court cannot accept that at first instance a non‑custodial sentence was an appropriate possibility.  The judge rightly described the two offences and the affray as three very bad incidents of violence, in two of which he used a piece of wood as a weapon.  So they were and so he did.
21.	The section 18 offence is, of course, particularly grave.  As this Court pointed out in the Attorney‑General's Reference Nos 59, 60 and 63 of 1998 [1999] 2 Cr App R(S) 128, a section 18 offence involves a deliberate or intentional causing of serious injury.  The use of a weapon, including a baseball bat or a piece of wood is an aggravating factor.  In giving that judgment, Lord Bingham CJ, went on to say this at page 131:  
"Sentencers must, however, always bear in mind that the welfare of the young offender is never the only consideration to be taken into account.  When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way.  If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra‑judicially the punishment that the formal processes of law have not given.  When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim's wounds, there can be little doubt that inadequate punishment adds insult to injury."
22.	In the present case the offender had, in effect, armed himself with a large piece of wood.  With it, he struck a heavy blow to the head of a man who, because he had his back turned, could not defend himself.  His plea accepts that he deliberately inflicted serious injury.  That was what for the victim resulted:  near blindness in one eye.  Even with an offender of this age, who has pleaded guilty, we are satisfied that an immediate custodial sentencing was called for in this case at first instance.  The deferral of sentence was unduly lenient.
23.	Of course it has to be recognised that by today the ISSP has been running for three months.  Half the period of deferral has passed and this Court faces a new situation.  We take into account the fact that he has been under that programme for that length of time.  We also have the benefit of a further report on the offender, dated 7th November 2006; it covers therefore the first 2 months of the order made by the Crown Court.  To summarise its contents, it records various breaches by the offender during the month of September.  Those included theft, verbal abuse to those involved in the programme, failure to attend sessions and then on 30th September, threats of violence, which led to the officer in charge at the attendance centre refusing to have him back.  During the second month he is said to have improved and to have shown a more positive attitude.  In the opinion of the social worker writing the report one can be cautiously optimistic.
24.	We deal with this because this Court's task is not finished when it concludes that a sentence passed at first instance was unduly lenient.  We have to exercise our own discretion as to what should now be done.  We have therefore considered whether, in the light of what has happened since the 4th September, the deferral decision though inappropriate then should now be allowed to stand.  We have concluded that it should not.  For one thing, it is clear that the offender has not complied with the terms set for him by Judge Lunt.  He has in fact broken the terms of the supervision order and it would seem therefore that she would be likely to impose a custodial sentence if the matter came back to her in February.  But quite apart from that, the limited progress made so far under the order does not seem to this Court to justify allowing it to run its course.  We intend for the reasons we have indicated to substitute a custodial sentence.
25.	We take into account all the information before us.  In the light of the offender's record of offences of violence, the assaults, the affray, the assault occasioning actual bodily harm, and the section 18 offence, we are satisfied that there is a significant risk to members of the public of serious harm from further specified offences.
26.	In those circumstances, we have considered whether this is a case where detention for public protection under section 226(3) is required.  We have concluded that it is not, and that the protection of the public in the case of this young man can be achieved by an extended sentence under section 228. He is still only 17 years old and has the capacity for change and personal development.  In deciding on the length of that extended sentence, we make allowance for double jeopardy and in particular for the fact that he has been at liberty and is now about to lose it.  The conclusion which we have reached is that there should be a sentence of detention on the section 18 count of a two‑and‑a‑half years custodial term and an extension period of two‑and‑a‑half years also.
27.	That will make a total period of 5 years.  That means that he will be subject to licence of course during the extension period.  We impose no separate penalty on the assault occasioning actual bodily harm count. The offender must surrender to custody forthwith.  The custodial term which we have imposed is to run from when he does so.