Neutral Citation Number: [2008] EWCA Crim 2361
No: 2008/3503/A5 
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 21st November 2008
 
B E F O R E:
 
MR JUSTICE DAVIS 
 
THE RECORDER OF CHESTER 
(sitting as a judge of the Court of Appeal, Criminal Division) 
  
‑ ‑ ‑ ‑ ‑ ‑ ‑
R E G I N A 

‑v‑ 

PAUL DAVID JEFFREY
 
‑ ‑ ‑ ‑ ‑ ‑ ‑
Computer Aided Transcript of the Palantype Notes of  
 Wordwave International Limited
A Merrill Communications Company
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
‑ ‑ ‑ ‑ ‑ ‑ ‑
Mr P Gower QC appeared on behalf of the Appellant 
Mr J Higgs appeared on behalf of the Crown 
‑ ‑ ‑ ‑ ‑ ‑ ‑
J U D G M E N T 

1.	MR JUSTICE DAVIS:  The appellant is a man now aged 39.  On 27th September 2006 in the Crown Court at Maidstone, he pleaded guilty to a count of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861.  On 6th June 2008 he was sentenced by His Honour Judge Griffith‑Jones to a term of 32 months' imprisonment.
2.	The case had first been tried at Maidstone Crown Court in May 2007, when at the end of the Crown's case the then trial judge (not His Honour Judge Griffith‑Jones) stayed count 2, which was a count of possessing a firearm with intent to endanger life, and count 3, possessing a firearm with intent to cause fear of violence.  The Crown appealed against that ruling and on 13th June 2007 the Court of Appeal allowed the appeal and a fresh trial was ordered.
3.	The second trial started on 16th April 2008 and finished on 9th May 2008.  The jury convicted the co‑accused on count 1, and acquitted both the appellant and the co‑accused on counts 2 and 3.  The co‑accused, a man called Cannon who is now aged 57, having been so convicted by the jury on count 1, was sentenced to a term of 3 years' imprisonment.
4.	The appellant now appeals against the sentence of 32 months' imprisonment imposed upon him, by leave of the single judge.
5.	The background facts shortly stated are these.  The co‑accused was the gamekeeper of an estate in Kent.  On the night of 17th April 2006 he went out in his Land Rover to check the land for foxes and rabbits.  He was accompanied by the appellant and a friend called Mr Boozer‑Cogger.  They had with them two rifles, which were firearms as defined by the Firearms Act 1968.  One rifle was a .22 of modest power and used to shoot rabbits.  The second was a Sako .270, a powerful centre‑fire rifle with a range estimated in miles and designed for use against large animals, from foxes and deer up to moose and bears.  The ammunition was designed to fragment on impact with soft tissue, so as to cause maximum damage on impact, with a view to instant and therefore more humane kills.  It should be emphasised that both the appellant and the co‑accused possessed the appropriate firearms and shotgun certificates.
6.	The Land Rover driven by the co‑accused, Mr Cannon, had a space in the roof, similar to a sunroof, through which the appellant was standing up and holding the Sako rifle.  As they were driving across the land, they noticed some lamps being shone in a field on the estate and decided to investigate.  They saw a Subaru motor vehicle with five occupants and four lurcher dogs, who were lamping (and thereby poaching) on the land.  One of the occupants and two of the dogs were out of the vehicle.  At that point the co‑accused, Cannon, instructed the appellant to fire a warning shot to scare the poachers.  Mr Boozer‑Cogger later said that he heard the co‑accused tell the appellant to "put a shot across their bows", to "shoot the dogs" and to "pop the tyres".  The appellant fired the rifle and the occupant from the Subaru jumped back into the vehicle, whereupon the Subaru sought to make good its escape as fast as possible.  The Subaru then drove out of the field at speed, followed by the Land Rover driven by the co‑accused, Cannon.
7.	There followed a high‑speed pursuit down farm tracks and across fields, during the course of which further shots were fired by the appellant at the Subaru.  The final shot went through the rear tailgate of the Subaru.  It struck a dog and went into the spine of 16‑year‑old John Smith, who was sitting in the middle of the back seat.  The Subaru came to the main road soon after and drove straight to a nearby hospital.  John Smith's injuries proved to be very serious indeed.  They resulted in him being paralysed from the waist down.
8.	In total the appellant had fired five shots.
9.	When interviewed the appellant accepted that he had fired all the shots with the Sako rifle, saying he had done what the co‑accused, Cannon, had told him to do.  His initial intention had been to fire a warning shot into the ground in front of the Subaru.  He accepted firing further shots when the Subaru was doing a U‑turn, saying he fired another round into the ground in front of the car hoping they would turn round and go back down the main drive.  He said that the final shot was an accidental discharge when he slipped and discharged his firearm.
10.	The appellant has no previous convictions of any kind.  Indeed, there was material to show that he was of positive good character.  The pre‑sentence report indicated that he was totally and genuinely remorseful for what had happened and the risk of reoffending was described as low.  Indeed, the risk of any further convictions would appear, on the material before the court, to be positively minimal.
11.	The judge, who of course had had the benefit of seeing and hearing the witnesses at the trial, clearly had given the process of sentencing considerable thought.  His sentencing remarks have all the hallmarks of careful preparation.
12.	The judge found, as he was clearly justified in doing, that the actions of the appellant and the co‑accused were reckless.  The judge emphasised that the gun in fact used was potentially a lethal weapon, being a high velocity .270 rifle.  The judge also understandably stated that the use of the rifle on that night flouted flagrantly the clear and most obvious requirements for the safe use of any such weapon and also noted that, whilst the offence was in no way preplanned, the recklessness had to be assessed in the light of it being the culmination of an extended period of similar reckless activity on the part of the appellant and the co‑accused.
13.	Understandably, and necessarily, the judge had to dwell on the injuries caused to the unfortunate John Smith, the judge accurately describing the injuries which he had suffered as "devastating".  The judge expressly accepted that such injuries were not intended by the appellant or by the co‑accused, but as he found they were the entirely foreseeable consequence of the recklessness involved.
14.	Turning then specifically to the appellant, the judge then said this:
"So far as you are concerned, Mr Jeffrey, you must bear the heaviest weight of responsibility for what happened, as you it was who had control of and chose to deploy the rifle.  It was you who decided just when and in what circumstances to fire, and where exactly to direct your aim.  On the other hand, you have pleaded guilty to this charge and, as I have said, you deserve and will receive full credit for that plea."
15.	The judge then went on to direct some specific comments with regard to the co‑accused in this way:
"As for you, Mr Cannon, whilst you did not fire the rifle, it is plain that you were the one generally in charge that night.  You had the capacity to stop what was happening, but you chose not to, instead driving and manoeuvring your vehicle, thereby facilitating the continued shooting and, at that outset at least, I am quite sure, issuing words of encouragement, if not command, to Mr Jeffrey for him to fire.  In your case, of course, you contested the charge, and therefore receive no credit for a plea of guilty."
16.	The judge then went on to state that he regarded the behaviour of the two that night as an aberration, accepted that there was genuine remorse and concluded that in effect both the appellant and the co‑accused "took leave of your senses and lost all reason, with consequences which, I accept, will live with you both for the rest of your lives."
17.	The judge then proceeded to pass the sentences which we have mentioned, stating expressly in the case of the appellant that had he not pleaded guilty the sentence would have been one of 4 years' imprisonment.
18.	Mr Gower QC, in the course of his able address to the court, says that a sentence of 32 months' imprisonment imposed upon this appellant was manifestly excessive.  His first point is, as he submits, that the judge's starting point — namely 4 years' imprisonment had the case been contested — was too high, in particular when set against the statutory maximum available of 5 years' imprisonment.
19.	In particular, Mr Gower submits that such a sentence failed adequately to reflect the following factors.  First, he emphasises the appellant's hitherto good character.  Second, he stresses that there was the absence of intention to cause any injury, let alone serious injury.  That is right, but equally Mr Gower necessarily has to accept that there was an extreme degree of recklessness involved here, as the judge had found.  Third, Mr Gower goes on to emphasise the delay that had elapsed between the appellant's guilty plea and the eventual date of his sentence, this being a period of nearly 2 years.  Linked with that, Mr Gower also makes the point that the appellant had during that period been twice subjected to the process of a criminal trial, which, as he submits, is to be taken as something of a punishment in itself.  Finally, Mr Gower stresses the low risk of reoffending, as stated in the pre‑sentence report.
20.	Mr Gower also referred us to the well‑known case of R v Robertson [1998] 1 Cr App R(S) 21, in which Latham J, giving the judgment of the court, said this at page 23:
"The position in our judgment is that, in the light of those authorities, the Court should look with some care at sentences over two years' imprisonment for an offence under section 20 to see whether in truth there is a real justification for a sentence of the length in question on the facts of the particular case."
21.	As a further element of his argument that this sentence was excessive, Mr Gower also submits that there was too great a disparity between the judge's starting point in relation to the appellant and the actual sentence imposed after a trial on the co‑accused, Mr Cannon.  As Mr Gower submitted, both in effect were in it together and the degree of disparity evinced by the sentencing remarks of the judge and the sentence imposed was not justified.  In particular, Mr Gower stresses that it was the co‑accused, Mr Cannon, who was generally in charge; that it was Mr Cannon who could have stopped what was happening, but chose not to; that it was Mr Cannon who drove the vehicle in order to facilitate the continued shooting; and it was Mr Cannon who encouraged, if not commanded, the appellant, Mr Jeffrey, to shoot.
22.	We are not able to accept Mr Gower's submission that this sentence was excessive.  This was an appalling case of its kind and the sentence necessarily had to reflect the tragic consequences to the victim, even though those consequences were not in any way intended by the appellant or indeed by the co‑accused.  There was here recklessness of a high degree; and it is highly relevant to sentence that here there was used a potentially lethal weapon, in the form of the Sako rifle.  Further, it was the appellant who fired that gun and he did so five times.  He of course did not intend to cause any injury to Mr Smith or anyone else, but that was a foreseeable consequence and he must bear responsibility accordingly.
23.	So far as the general observations of Latham J in Robertson are concerned, that has to be set against the context that in this particular case it was a loaded firearm that was used, which of course distinguishes it from so many of what we might call the usual kind of section 20 case.
24.	In all such circumstances, and notwithstanding the points made by Mr Gower, we cannot accept that a starting point, had there been a trial, of 4 years was too high.
25.	We are also not able to accept Mr Gower's submission as to disparity.  In our view, the judge was fully justified in finding that the appellant must bear the heaviest weight of responsibility.  It may well be that the co‑accused, Cannon, was in general charge, as it were, that night and it may well be that the appellant was in the habit of deferring to the co‑accused, Cannon.  But as the judge pointed out, it was the appellant, a mature man experienced in firearms, who had control of and chose to deploy the rifle.  It was the appellant who decided just when and in what circumstances to fire.  Given those findings, which were open to the judge, we can see no fault in his approach as between the appellant and the co‑accused.
26.	Stepping back and looking at the matter in the round, the question for this court remains as to whether or not such a sentence of 32 months' imprisonment on a plea was manifestly excessive, given the somewhat unusual nature and circumstances of this offence.  We are not persuaded that it was and this appeal therefore must be dismissed. 
______________________________