Neutral Citation Number: [2009] EWCA Crim 1759
Case No: 2009/2438/A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Wednesday, 29 July 2009
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES) 

MRS JUSTICE RAFFERTY DBE 

MRS JUSTICE SLADE DBE 
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 45 OF 2009   
 
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Computer Aided Transcript of the Stenograph Notes of  
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Miss M Nelson appeared on behalf of the Attorney General 
Mr A Davidson appeared on behalf of the Offender 
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J U D G M E N T 

1.	THE VICE PRESIDENT:  This is a case of a disposal in the Crown Court which, on the face of it at least, has the appearance of being manifestly unusually lenient.  The difficult question in the case is whether the judge was entitled to deal with the offender in an unusually lenient way, in the hope that he had belatedly arrived at the point where he wished to cure his behaviour.  Allied with that is the similarly difficult question whether subsequent events as they have turned out do or do not mean that the disposal is in fact one which is in the best interests of the public and ought for that reason to be maintained.
2.	Her Majesty's Attorney General seeks the leave of the court to refer under section 36 of the Criminal Justice Act 1988 an order deferring sentence on Gavin Barratt.  The order was made in the Crown Court at Worcester on 16th April 2009.  We give leave.
3.	Barratt is 22 years of age.  He has a bad, rather depressing record for violence in public.  The offences are not of the gravest kind, but they are more than enough to have made him a thorough menace in his home town of Hereford.  His antecedents formally begin at the age of 15, but since the first recorded offence is the breach of an anti‑social behaviour order and since history reveals that he was expelled from school for fighting, it is apparent that his habit of public aggression was well in place by then.  There followed two further breaches of anti‑social behaviour orders in the same year, offences of burglary on a number of occasions, and also of violence.  Then there was battery in February 2003, threatening words and behaviour in October 2005, more battery in June 2006, criminal damage in September 2007 and August 2008, disorderly behaviour in the meantime in January 2008.  In the course of that history he received two custodial sentences, respectively of four months and 12 months, in 2003 and 2004.  After that, courts were persuaded on a number of occasions to pass non‑custodial community orders.  Those orders were not infrequently broken, including three times in the summer or autumn of 2008.
4.	He fell to be dealt with before the court for offences committed on two separate occasions.  First, on 18th April 2008 he got himself into an argument in the street with a number of boys who were significantly younger than he was.  It was a quarrel which so far as one can see he picked himself.  He headbutted a 15‑year‑old in the course of it and broke his nose.  On his own admission, later made, he was under the influence of drink and drugs at the time.  He was promptly arrested and so thereafter was on bail.  
5.	A few months later on the night of 6th/7th September 2008, he was in town in the company of two others.  They had all been drinking and they were cross because they had been, no doubt justifiably, refused entry to a further public house.  In that state of mind they saw a group of people on the balcony of some nearby flats who were in the course of enjoying themselves at a party.  They conceived some entirely unreasonable objection to them.  They made an attempt to enter by kicking down the door of the building and when that failed they invaded the balcony by climbing a lamppost.  There they assaulted the people seen.  This man, Barratt, assaulted three people.  He punched, he bit, he kicked and he used his head.
6.	The group which was attacked happened to be Polish.  The offender added insult to injury and made his offence worse by shouting abuse at them based on their country of origin and did that from the outset of seeing them.  After the event when the police were called the group of which this offender was part boasted to the police of having got the better of some foreigners and suggested, falsely, that they had been under attack.  In interview he suggested that he had been provoked by being spat at from the balcony.  
7.	The three victims of these assaults suffered some, but happily not lasting, injury.  One of them had very nasty bruising and a black eye, together with discomfort and pain for which he had to take painkillers for several days.  Another had superficial lacerations.  A third had a degree of concussion, bruising around the eye, and a possible fracture of the cheekbone and, for safety's sake, was detained in hospital for two days.  It follows that these were significant injuries.  They were not long lasting, but neither were they purely transient.  The latter offences were, as we have said, committed when Barratt was on bail for the headbutt on the 15‑year‑old.
8.	The offender pleaded guilty at the first opportunity to the later offences and he pleaded guilty, albeit not quite at the first opportunity, to the earlier offence.  
9.	The judge had before him careful reports from a probation officer who knew Barratt fairly well.  The early history we have already summarised: he had been expelled from school for fighting, he had never taken any examinations, he had had a series of casual jobs (one of which he had lost, again for fighting), interspersed with periods of unemployment.  There was also an element of family difficulty which had redounded upon him as a youngster and caused some episodes of self‑harm by him, which perhaps indicated a degree of lack of assurance that his behaviour in public does not otherwise suggest.  The background was apparently nasty family disputes at a time following the separation of his parents.
10.	The solitary but potentially significant development, comparatively fresh at the time the judge dealt with the case, was that the offender and his girlfriend, who had been together for some months, had recently become the parents of the offender's first child.  Their finances were quite straightened because the offender was not in work, but as the probation officer pointed out he had resisted resource to burglary which had in the past been his habit.  For his own part the offender professed an intention to turn over a new leaf and to get himself separated from the habitual abuse of drink and drugs and he appeared, so far as the probation officer could see, to have made some progress.  Those are the kind of assurances which are put before judges of the Crown Court day in and day out.  Part of the function of the Crown Court Judge, which cannot be replicated in this court, is to try to work out in which of a comparatively small number of cases those kinds of assurances might actually have some substance in them.  
11.	This was a case in which for various reasons it was possible to deal with the other two defendants by non‑custodial sentences.  Their history was entirely different to that of Barratt and no complaint about the way in which they have been dealt with is or ever has been raised on behalf of the Attorney General.  
12.	The judge was persuaded to take what is on any view an unusual course with this offender.  He said this:
"The easy course, even having read the pre‑sentence report, would be to send him to prison for several years during which time he would be at least kept out of circulation.  Mr Davidson, on his behalf, pleads as to possibility of a change and a more positive outlook and urges me to reflect that in some way that keeps him at large in the community.  I am very loath to send any young person to prison and what I propose to do in this case is to defer his sentence to see whether the sort of change that Mr Davidson urges upon me might actually be real.  
So what I am going to do is I am going to defer sentence ... for six months.  The terms I have in mind ... [are] that he should be subject to supervision by Probation during that time.  He, again, will not go to any on‑licensed premises in Hereford during the period of deferment ... [and can complete] unpaid work that still has to be done ... as a condition of the deferment."
13.	That method of disposal is, for the purposes of the Attorney's power to refer a case to this court, a sentence, because on longstanding authority, having deferred sentence on terms such as those, it is wrong in principle if the terms are kept for a court subsequently to impose a custodial sentence.  Accordingly, it is properly open to the Attorney to refer this order to the court as she has done.
14.	On the face of it, as we have said, the order is conspicuously lenient.  The appropriate tariff sentence, were one to be passing a sentence of imprisonment, is (if not one of several years) likely to have been a sentence in the general region of something like two years, bearing in mind that there was first the offence against the 15‑year‑old and then, aggravated by being on bail, the assaults on the other victims.  In saying that we have regard to the Guidelines issued by the Sentencing Guidelines Council and applicable to offences of assault occasioning actual bodily harm, including those that have racial aggravation.  We need not, we think, say more about where precisely in relation to those guidelines the sentence might have been.  
15.	The unusual feature of this case, apart from the clear risk which the judge took in the Crown Court, is to be found in the contents of a new report from the probation officer which has very, very recently been prepared for this court.  The probation officer says this:
"Since his appearance at Worcester Crown Court on 16th April 2009, Mr Barratt's engagement with the Order has dramatically improved.  He has attended all appointments offered...  The feedback from workplace supervisors has been equally impressive.  Comments on his time sheets have variously stated: 'Excellent effort, used common sense and initiative ‑ good work', 'Enthusiastic, worked hard and really well...' and 'Works well ‑ needs no prompting ‑ excellent'." 
That is to be contrasted with a previous history of failing to attend appointments in connection with his various community orders, at the rate of approximately two out of every three.  The probation officer goes on to say:
"Mr Barratt has additionally attended to see me, despite not being subject to a supervision requirement, in order that I can monitor his progress, and ensure he is adhering to all requirements of the deferment.  At such times Mr Barratt presents as sober and compliant, he engages well and is happy to discuss openly his current circumstances. ...  
 [He] is now able to recognise that to a large extent his behaviour was spiralling out of control, and was drinking heavily and frequently, in tandem with periods of illicit drug misuse.  He has expressed his deep regret for the harm he has caused to the victims of the offences and describes himself at the time as 'a complete idiot'.  In addition, he fully appreciates the severity with which courts view his behaviour and that custody remains a very real possibility, either as a result of this appeal, or when he returns to court at the end of the deferred period." 
The probation officer notes that it appears that the main reason for what he describes as "this transformation in attitude" has been the birth of the son.  Realistically he adds that whether this is or is not the motivating factor or whether it is a desire not to return to custody is difficult to decide, but the transformation has been very positive.  He adds this, which is something rarely seen in a report from a probation officer who is plainly realistic and far from starry‑eyed:
"I would like to conclude that I have written a number of reports on Mr Barratt in the time that I have known him, and heard many platitudes.  I can honestly say that this report has been a pleasure to write, and can confirm, as best I can, that there has been a definite change in attitude and motivation, following His Honour Judge Pearce‑Higgins' decision to defer sentence and test Mr Barratt's resolve."
That, as we say, is an unusual report for this court to receive.  Like the probation officer we do not eliminate the real possibility that part of what has achieved this transformation has been a fear of going to prison.  But if so that does not alter the transformation.  There is a plain public interest in defendants who repeatedly offend being sentenced to an appropriate tariff sentence.  There is an equally plain public interest in people like Barratt, if their attitude is changing so that they will no longer be a risk to the public, having that change of attitude and approach reinforced so that it continues, rather than dismissed with the real risk that the change will come to an end.  The chief public interest in the end is in not having him behaving in the streets of Hereford as he has over the last several years.
16.	We have come to the conclusion that the order that the judge made in the Worcester Crown Court was lenient.  We have some doubts ourselves as to what it was that persuaded Judge  Pearce‑Higgins that there was sufficient basis for optimism in this case to make it, but whether that is so or not we are absolutely clear that as things now stand it would be contrary to the public interest to undo it.  Public interest at the moment in this man is very plainly in doing everything that can be done to maintain the momentum which is behind his change in attitude.  We very much hope that it will be continued and the signs are that it will.  
17.	We gave leave to the Attorney because the order made below clearly raised important questions and on the face of it was arguably unduly lenient.  Whether in the end it was unduly lenient or not we would not, in any event, in the particular circumstances of this case, now interfere with it.  In those circumstances the order made by the judge below will stand.