No: 201005779/A3‑201005815/A3 
Neutral Citation Number: [2010] EWCA Crim 3002
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Tuesday, 30th November 2010
 
B e f o r e:
LORD JUSTICE GROSS 
 
MR JUSTICE RAMSEY 

MR JUSTICE MACDUFF 
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R E G I N A 

v 

JAKE JAMES WRIGHT 
GEORGE DANIEL JAMES HUYTON 
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Miss T Loftus appeared on behalf of the Appellants
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J U D G M E N T
1.	LORD JUSTICE GROSS:  On 21st June 2010 in the Crown Court at Liverpool the appellant, Huyton, aged 18, pleaded guilty and on 10th August 2010 the appellant, Wright, pleaded guilty and on 20th September 2010, before His Honour Judge Aubrey, they were sentenced as follows:  Wright, unlawful wounding, 2 years 4 months' detention in a young offender institution; Huyton, 2 years 4 months' detention in a young offender institution with various ancillary directions.  Both appellants appeal against sentence by leave of the single judge.
2.	There were co‑accused, a John Williams, who pleaded guilty to a count of assault occasioning actual bodily harm and was sentenced to 8 months' imprisonment, with a consecutive sentence of 21 months' imprisonment for unrelated offences of unlawful wounding and common assault, making a total of 29 months' imprisonment in all, and Laura Williams, who pleaded guilty on rearraignment to a count of perverting the course of justice and was sentenced to a suspended sentence order, comprising 24 weeks' imprisonment, suspended for 12 months, with a requirement of 150 hours unpaid work.
3.	There is a preliminary matter with which we should deal.  In the case of Wright he has waived his right to be here.  In the case of Huyton, the position is as follows.  As is documented, he refused to board the prison van to bring him here.  He also refused to sign a waiver form.  He knew full well of his right to attend and he was also informed of the fact that, in his absence and subject to any argument to the contrary, the court was minded to proceed.  In our judgment, a refusal to board the prison van in such circumstances amounts to the plainest possible waiver of his rights to attend and, realistically, Miss Loftus did not seek to contend otherwise.  The fact that he did not sign the form, indeed refused to do so, is neither here nor there.  We therefore proceed with both appeals.
4.	We turn to the facts.  On the evening of  20th February 2010 the complainant, a Mr Lawler, went out drinking with friends in the Liverpool city centre.  However, he became separated from them and ended up in a bar on his own.  During the course of the evening he began taking other people's drinks from tables and generally making a nuisance of himself.  One of the people who was upset by this was Laura Williams who spoke to her brother, Williams, about this.  He spoke to Lawler in her presence and warned him off.  Miss Williams then pushed Lawler away.  The appellants were also in the bar and were close to Williams.
5.	Mr Lawler was clearly very drunk.  At 3.00 am on the morning of 21st February the bar closed and the staff asked everyone to leave.  Mr Lawler was one of the last to leave and once outside sat on a stool at the top of a set of  steps.  Williams came up to him and punched him.  About five seconds later the appellants approached him and punched him at least once each.  As a result of the attack, Lawler fell off the stool and fell down to the bottom of the steps and was knocked unconscious.  The emergency services were summoned and Lawler was taken to hospital.  
6.	Lawler was found to have a depressed fracture of his skull and at one point it was feared he might die.  The CT scan revealed a subdural haemotoma which required surgical intervention to remove a blood cot.  Four weeks prior to sentence he was still awaiting a specially made titanium plate to be inserted into his skull.
7.	The appellants were subsequently arrested but declined to comment in interview.
8.	So far as concerns antecedents, both appellants have previous convictions, albeit of what might be called a limited nature.
9.	When passing sentence the judge said that the appellants had destroyed the quality of Lawler's life, his working career and his ability to cope with life.  He had been close to death after what they had done.  It was probably only the skill of the surgeons that had saved his life.  The appellants had pleaded guilty to unlawful wounding.  The offence fell into category 2 of the Sentencing Guidelines.  They were not first‑time offenders.  The aggravating features were that the offence took place in the early hours of the morning, in the city centre after they had been drinking.  There might well have been some sort of confrontation in a club but that was over.  Later on Williams took up the cudgel by punching Lawler and then the appellants, who were aware of that, launched their attack on him.  They had struck him a number of times, causing him to fall to the ground and thereby sustaining his terrible injuries. They could have killed him as consequence of thuggery that night.  Custody was inevitable.  Counsel said they were remorseful but that was doubted, given everything that had been read about them and their conduct.  If they were remorseful, it was because of the predicament in which they found themselves.  They were the same age.  There was no reason to differentiate between them.  It was noted this would be their first custodial sentence but this was an extremely serious case.  It was accepted that no weapon was used and there was little or no premeditation.  But they had struck Lawler repeatedly.  Had there been a trial, the appropriate sentence would have been three‑and‑a‑half years.
10.	In her written grounds of appeal, Miss Loftus put the matter this way:  the sentence was manifestly excessive; insufficient account was taken of the guilty pleas; the age of the appellants; their limited unrelated records; the sentencing guidelines; and the fact that the injuries were not caused by the blows from the appellants but from the subsequent fall.
11.	In her excellent oral submissions today, for which we are most grateful, Miss Loftus developed the appeal in this way.  Her complaint was that the sentences were each manifestly excessive.  Realistically she accepted that custody was inevitable, so the sole issue was the length of the sentence.  She accepted, inevitably, that the injury caused to the complainant was grave indeed, with lasting and disastrous consequences.  She pointed to the guideline and submitted that for the category accepted by the judge, the sentence was outside the range.  She said that the aggravating features, to which the judge had referred were sadly commonplace.  In the case of both appellants, they did have antecedents but their convictions were limited and unrelated and therefore, she submitted, insufficient to warrant going outside the guideline range as the judge had done.  She further drew our attention to a number of cases of which one example is R v Hickman [2001] 2 Cr App R(S) 261, where a distinction was drawn between injuries caused by the blow itself and injuries caused by a resulting fall.  Overall, Miss Loftus put the matter, if we may say so, clearly and succinctly.  The argument lost nothing whatever by its brevity.
12.	We turn to consider our views of this case.  This was a drunken attack in the city centre, by two appellants on one drunken complainant and following, to the appellants' knowledge, an assault on the complainant by the co‑accused, Williams.  Whatever the complainant's conduct earlier, that was distinctly over.  The appellants chose thereafter to engage in violence.  That was a choice they made.  As already underlined the attack caused very serious injury, with lasting consequences.  The appellants are each distinctly fortunate that they are not facing more serious charges.
13.	So far as concerns the authority of Hickman, to which we have already referred, we do, with great respect, have some difficulty with the reasoning which distinguishes the blow and the fall as causing the injury.  If one asks why the complainant fell, the inevitable answer is because he was struck by blows from the appellants.  As a matter of causation, it seems to us very difficult to say that there can be a distinction with any meaningful difference between a case where the blow causes the injury and the fall causes the injury ‑ or at least there is no such distinction in this case.
14.	Of course, and as is reflected in the sentence, the incident here concerns a section 20 charge, not a section 18 charge, but the difference between the two is one of intention rather than causation.  Be that as it may, with great respect to Hickman and other cases in that line of authority, they can have no bearing on the sentence here.
15.	So far as concerns Miss Loftus' forceful point as to the guideline, it is necessary to restate that guidelines are guidelines not statutes.  In any event the guidelines, at least in their current form, apply to the first‑time offender.  The appellants are not that, so the judge was on that ground alone not strictly confined within the guidelines.  
16.	Looking at the matter overall and notwithstanding Miss Loftus' skilled submissions the sentence was, in our judgment, severe but not manifestly excessive.  Put another way, any reduction in sentence could involve tinkering only.  It follows that these appeals are dismissed.