No. 2008/03965/A7
Neutral Citation Number: [2008] EWCA Crim 2514

IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday 16 October 2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  OWEN

and

MR  JUSTICE  SWEENEY

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ATTORNEY GENERAL'S REFERENCE Nos. 48 of 2008

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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JAMES  GREEN

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Mr A Jafferjee QC appeared on behalf of the Attorney General

Mr S Duke appeared on behalf of the Offender
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J U D G M E N T
Thursday  16  October  2008

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence imposed on 24 June 2008.  We grant leave.

2.  The offender is James Green.  He was born in April 1992.  He is now 16 years old.  At the time with which we are concerned he was but 15 years old.  This case arises from yet another knifing incident.

3.  On 24 January 2008, in the Crown Court at Bolton, the offender pleaded guilty to wounding with intent to cause grievous bodily harm.  There was a complication in this case which meant that he was not sentenced until 24 June 2008 when His Honour Judge Everett passed a two year detention and training order.

4.  The reason for the delay was that, shortly before the incident to which we shall now come, the offender had been convicted of an offence contrary to section 20 of the Offences against the Person Act 1861.  He appealed against that conviction.  In due course the case came before the Crown Court and the appeal was allowed.  The process by which the appeal came before the Crown Court meant that the final decision on sentence for the instant offence was delayed.  We are asked to bear in mind the drawn-out process which occurred, and of course we do.  In the result the offender is of previous good character.  We take that into account.  However, it must be added that, on the occasion with which we are concerned, he had failed to heed a very clear warning because at the time he had been convicted of the offence under section 20 and had only recently left court with that conviction recorded against him.

5.  The incident with which we are concerned occurred on 6 November 2007.  It had its beginnings in a trivial little accident.  The offender was on a bus returning home from school.  The victim, Christopher Stephens, who was 16 years old, was on the same bus also travelling home from school.  He was with a friend.  The offender and the victim were not pupils at the same school.

6.  They both proposed to alight at the next bus stop, which demonstrates that they live fairly close to each other.  Each of them was standing near to the driver.  The offender was in front of the victim.  The driver applied his brakes unexpectedly forcefully, as a result of which the victim bumped into the back of the offender with his shoulder.  The offender took exception.  When they had all alighted from the bus, the offender and the victim looked at each other.  The offender asked the victim what he was looking at.  They walked away from the bus stop.  They exchanged abusive words and gestures.  The offender then said words to the effect of, "Wait here.  I'm going home and I'm coming back".  With that, he left the scene and went home.

7.  The victim together with his friend continued to walk towards their respective homes.  When the offender reached his home it seems clear that he picked up and unsheathed a dangerous knife.  He left his home carrying that knife and he took his older brother with him.  He went back to where the victim was walking towards his home.  

8.  The offender ran towards the victim, who suddenly realised that the offender was carrying a knife.  It was a hunting knife.  We have seen a photograph of it.  It was rightly described by Judge Everett as "an absolutely wicked weapon".  The victim said that he did not want any trouble and tried to run away.  However, the offender grabbed hold of his blazer and pulled him to the ground.  He lay there curled up in a ball in order to protect himself.  He was, in truth, defenceless.  A passer-by described how the offender seemed to lean over the victim, raise his arm and bring it down forcefully in "a punching motion" to the victim who was on the floor.  One blow struck the victim on the widest part of his left thigh.  The blade of the knife entered through the outer aspect of the upper thigh and travelled right through the leg and exited the thigh near to the victim's groin.  It was not suggested by the Crown that the offender had deliberately aimed the groin, but the blow had been deliberately targeted at the victim's leg.  The entry wound measured 4cm by 3cm.  Unsurprisingly, it bled profusely.  Fortunately for the victim (and the offender) the femoral artery was missed.  The knife must have come within a millimetre or two of cutting it.  If it had, the likelihood is that the wound would have been fatal.

9.  The offender ran away.  The victim, bleeding profusely, managed to reach a nearby shop.  The shopkeeper tried to attend to him.  The emergency services were contacted.  By the time they arrived, the victim's mother had arrived on the scene.  She found her son in the seriously injured condition we have described.  He said to her, "Mum, I think I'm going to die".  Her ordeal needs no description.

10.  At 4.30pm the offender was arrested by the police.  The empty sheath for the knife which had been used to attack the victim was recovered.  The knife was never recovered.

11.  The offender asked the police why he was being arrested.  When he was told the reason, he replied that he had had a fight with one lad and that he had hit him once.  The lad had run off and so had the offender.  That plainly was untrue.

12.  An examination of the contents of the offender's mobile phone revealed pictures of the offender's hand holding the knife with the sheath placed alongside it.

13.  The offender was interviewed at the police station.  He gave an account of an incident.  He denied that he had had any weapon.  Eventually he was confronted with the injuries which the victim had sustained and he said that the victim might have fallen on his (the victim's) own knife or on broken glass.  Throughout the interview he maintained that he did not have a knife and in any event had acted in self-defence.  That was all nonsense.  In the end he pleaded guilty at an early opportunity.

14.  As a result of the injury, the victim suffered damage to his nerves.  He was unable to attend school for two months.  There was a long period of pain and damage to the sensation in his left foot, as well as very seriously increased sensitivity in his calf.  He was a keen on, and actively interested in, sports.  He was unable to play sports in the immediate aftermath and his education was seriously disrupted.  The latest medical report refers to the fact that the victim is making significant progress but that, a year on, he is still suffering from the consequences of his injury.

15.  The sentencing judge had a pre-sentence report before him.  Part of the report referred to the circumstances of the conviction to which reference has already been made.  The offender comes from a stable background and decent home.  Much to their credit, his parents have stood by him throughout and are present in court today in support of him.  The pre-sentence report concluded that a supervision order would be appropriate.  The judge took the view that this crime was far too serious for such an outcome.  Plainly he was right.

16.  A psychiatric report was put before the judge.  However, its contents simply reflected what the offender had told the psychiatrist.  There is, for example, a description of how, having become irritated and angry by what had happened on the bus and on the way home, the offender went to his bedroom where "he saw a small knife in his room". The violence is described by the psychiatrist as "the index offence amounted to wounding and the offender had used a small knife to inflict the injury".  The judge was unimpressed with that analysis.  So are we.

17.  We have also been supplied with a favourable report from the young offender institution where the offender is detained.  It was prepared shortly after the offender's arrival there.  It is plain that the experience has been a shock to him.  Today we have been supplied with a letter from the offender in which he expresses his regret at what he has done.

18.  In his careful sentencing remarks the judge meticulously analysed all the relevant features of the case.  He set out the aspects of the case favourable and unfavourable to the offender which he thought were of importance.  There is no possible criticism of his analysis. 

19.  The criticism is different.  It is that, having examined all the relevant considerations and balanced them, the sentencing judge passed a sentence that was unduly lenient.  We agree.

20.  The matters of mitigation are as follows.  The offender had no previous convictions.  He pleaded guilty.  Most important, he was very young when the offence was committed.  We bear those factors in mind.  However, on any analysis this is another alarming case.  The offender was not one of those young men who were out and about carrying a knife.  That is a serious enough matter, as this court has endeavoured to point out on earlier occasions.  Here, on the basis of some perceived insult, the offender went home and deliberately armed himself with what the judge rightly described as a wicked weapon. Then, armed with it, the offender returned with his brother to the scene.  He knew where the victim was likely to be and there he deliberately attacked him.  Having pulled him to the ground, he stabbed him in a very dangerous area as he lay defenceless.  The blow was sufficient for the knife to penetrate right through the victim's leg, desperately close to the femoral artery.  It was almost a fatal injury.  It has left the victim a year later with continuing disability.

21.  Although the offender is very young, the conclusion that, despite his age, he knew exactly what he was doing and did it deliberately appears to us to be unavoidable.  It all happened just two weeks after a court appearance which ought to have been as salutary a warning as there could be.

22.  We recognise the impact on the offender.  But we also must bear in mind the serious impact on the victim and his family.  We have been referred to, and have read, the victim impact statements.  One of the many difficulties in this case is that the offender and the victim live within a very short distance of each other.  The victim's parents believe that for their own peace of mind and for that of the victim, they will have to leave the area because they do not wish to live close to the young man who injured their son with the knife.  That is an entirely understandable point of view. 

23.  Having reflected on all these considerations, we have concluded that the judge should have exercised his powers under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.  Having done our best to allow for the youth of the offender at the time when the offence was committed, we are nevertheless satisfied that this was a very grave crime.  In the circumstances, notwithstanding his plea of guilty, a sentence of four years' detention and training should replace the two year order that was made by the judge.

(Following a request from a member of the press,
and having heard submissions from both counsel
the court directed that the section 39 order should be lifted)