Neutral Citation Number: [2011] EWCA Crim 1814
Case No: 201102741/A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 30th June 2011
 
B e f o r e:

LORD JUSTICE LEVESON 

MR JUSITCE GRIFFITH WILLIAMS 

MRS JUSTICE NICOLA DAVIES DBE 
- - - - - - - - - - - - - - - - - - - - -

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

ATTORNEY‑GENERAL'S REFERENCE NO 36 OF 2011

(HAYDEN COLES) 
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph 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 K Hooper appeared on behalf of the Attorney General 

Mr W Emlyn‑Jones appeared on behalf of the Offender 
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	LORD JUSTICE LEVESON:  On 28th March 2011 in the Crown Court at Plymouth before His Honour Judge Gilbert QC, this offender, who is now 18 years of age, pleaded guilty to an offence of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861.  On 21st April 2011 he was sentenced to a term of 15 months' detention in a young offender institution.  
2.	Her Majesty's Attorney‑General now seeks to refer the sentence, pursuant to provisions of section 36 of the Criminal Justice Act 1988 as unduly lenient.  We grant leave.
3.	The facts are as follows.  During the evening of 13th November 2010 the victim, Joshua Mallett, was out with friends in the Exchange Public House in Fore Street, Ivybridge.  When he entered the public house he saw the offender, who was of a bigger build than he, sitting beside the pool table.  The offender had been in a 3‑year relationship with Charlotte Thompson, who had subsequently started a relationship with Mr Mallett.  It appears that this relationship in turn had itself ended some months previously and at the time of the offence Miss Thompson had resumed her relationship with the offender.
4.	Mr Mallett states that when he looked at the offender in the public house the offender stood up and gestured with his arms as if to say: "Bring it on.  Do you want a fight?" When Mr Mallett did not respond to the gesture he felt the offender was watching him for the rest of his time while in the public house.  A friend of Mr Mallett also noticed that there was a male standing by the pool table who was staring at Mr Mallett.  Eventually Mr Mallett made an excuse to go home, leaving his friends  who went on to another public house.  In truth, he explained that he wanted to leave because of the offender's attention.
5.	In the meantime Lisa Clegg was sat with the offender and his friends in the public house.  She noticed that he was looking angry.  When she asked him what was wrong he said something like: "Josh Mallett's in here".  When she asked what the problem was with Mr Mallett he said something like he had stolen his girlfriend, or was seeing his girlfriend, although the offender had said that he was back with her now.  He then said: "I'm going to kick the shit out of him."
6.	When Mr Mallett left the public house he noticed the offender was still inside.  He had consumed a number of drinks but states that he was not drunk. He walked along Erme Road towards his home, continuing down an alleyway leading to Victoria Park.  He did not notice anyone.  It was quite dark as he got to the park and as he approached a path, he heard the sound of running behind him.  He did not have time to turn round before he felt a blow to the back of his head that made him crouch down.  He is unable to remember many details following the blow, but he does recall trying to cover himself with his arms for protection.  Although he cannot remember seeing his attacker, he recalls that something made him say: "Come on Hayden, let's just leave it.  Stop".  His next recollection is being in a house, from which he managed to return to his home but he then remembers waking up in hospital.  
7.	He sustained a number of injuries from the incident including a broken jaw on the left side, a tender swelling over the right side of his forehead including deep grazing, tender swelling of his left cheek, swelling and bruising to both eyes, abrasions to his right cheek and chin, abrasions to his right hand and grazes on his right arm and scratches to his upper left arm and lumps on his head within the hairline.
8.	After the incident the offender returned to the public house.  Scott Puleston, the offender's cousin, had played rugby with the offender earlier that day and had been drinking with him.  At around 11.00 pm or 11.15 pm he noticed the offender was not in the pub.  When he went to the toilet the offender came in and was crying.  Mr Puleston noticed that he had blood on his knuckles and he asked what had happened.  The offender told him that he had caught up with Mr Mallett outside the public house and "filled him in". When Mr Puleston asked what it was about, the offender told him that Mr Mallett had been the boyfriend of his current girlfriend and there had been some problems between them.  
9.	Police officers attended the offender's home several times on the afternoon of 14th November in order to arrest him for assault.  They were told by his sister that he was not at home but eventually they gained access to the property and found the offender inside in the dark.  When asked why he was in the dark, he replied: "Because I'm scared".
10.	The offender was then interviewed and undeniably made full and frank admissions of the extent of his offending.  He explained that he had drunk roughly five or six pints that evening, although he could feel the effects of the alcohol, he knew what he was doing.  He said that after he had broken up with Charlotte Thompson she had gone out with Mr Mallett and complained to him about Mr Mallett.  The situation had escalated and Mr Mallett had been harassing her.  He had said hello to Mr Mallett from across the public house when he arrived but Mr Mallett had smirked at him which inflamed the offender's bad feelings.  It was at this point that he decided he was going to beat Mr Mallett up.  As he watched Mr Mallett leave the pub, he waited and then followed him to the park where no one was about.  Once in the park he jumped him from behind and pulled him down from the shoulders.  He repeatedly punched Mr Mallett in the head.  He stamped on his head between five and seven times and kicked him in the face.  During the attack he was wearing his black school shoes which had hard soles, he shouted: "Leave Charlotte alone".  The only thing that Mr Mallett had said to him was: "Hayden stop". The admissions went on that after he had kicked him in the face Mr Mallett rolled over, so that he was facing upwards and was breathing weirdly.  At this point he realised what was doing "just so wrong" and he walked away, leaving Mr Mallett in the park without looking back.  Following his return to the public house he washed his hands and cried about what had happened.  He had never done anything like that before and had not liked what he had done.  He had apologised for what he had done.  He confirmed he had hidden upstairs when the police came to his house because he was frightened.
11.	Mr Mallett states that he was in considerable pain from his injuries and was only able to eat soft food for six weeks.  He was off work for three weeks.  He was not able to have an operation to help fix his jaw because it was too close to a major nerve but facio maxilla opinion was that he would suffer no long‑term consequence from the injury, at least in a physical sense.  
12.	In a victim personal statement, Mr Mallett explained that he had lost his independence because of his injuries and now felt embarrassed being too scared to walk through the park on his own.  He also felt guilty that the worry and stress was bad for his grandmother who was then ill and had subsequently died.
13.	The offender was 2 months short of his 18th birthday at the time of this offence and save for a single reprimand for criminal damage, committed when he was 13, which the judge made clear that he ignored, was of good character.
14.	In a pre‑sentence report the offender gave the same account as he had in his initial police interview and the author of the report concluded that he demonstrated genuine remorse for his actions, acknowledging that Josh Mallett "did not deserve what I did to him."  The report concluded that there was nothing to suggest that the offender held an anti‑social attitude generally and there was no pattern of violent or aggressive behaviour.  He represented a low likelihood of further conviction although the report writer noted that he had clearly evidenced his ability to cause serious harm to others in the commission of this offence.
15.	On behalf of the Attorney‑General Mr Emlyn‑Jones submits that the following aggravating features were present within the circumstances of this offence.  First, it was premeditated.  The offender waiting until the victim was alone.  Second, the attack came from behind, without warning or provocation. The offender kicked him in the face and stamped on his head with a shod foot, leaving the victim isolated and alone in a dark deserted park, making no attempt whatsoever to call for help.
16.	Mr Emlyn‑Jones recognised that there were important and significant mitigating features, namely that the offender had made full and frank admissions in police interview, that he had pleaded guilty at the first opportunity, was of previously effective good character, was 17 years of age at the time of the commission of the offence, showed genuine remorse and had not caused lasting physical injury.
17.	In sentencing the offender, this very experienced judge observed that the appropriate categorisation for this offence was in the lowest bracket of the applicable sentencing guideline, that the offender acted in a wicked manner and was a coward and had pursued the victim wearing hard soled shoes, attacking him from behind and knocking him to the ground before kicking him to the head and face and stamping on his head, "in order to cause him as much harm as you possibly could." He also underlined that he had left the victim lying in the dark in an empty park while he went back to the public house.
18.	The judge took account of the age of the offender and said that he had regard to the sentence, which would have been available to the court at the time of the offence when the offender had been 17 years of age.
19.	This last point relates to a submission which was made to the learned judge and which has been repeated by Mr Hooper in this court that had there not been a delay in the charging of this offender, he would have appeared before the youth court whereupon it is at least arguable that jurisdiction would have been retained, giving the court a maximum possible penalty of 2 years' detention and training, which itself would have fallen to be reduced by reference to the offender's plea of guilty.
20.	Mr Hooper has argued that such a possibility was of real significance, when considering what the appropriate sentencing powers of the court should have been.  In this regard he referred to the decision of this court in R v Gafoor  [2002] EWCA Crim 1857.  Gafoor has itself been followed and approved in R v Bowker [2007] EWCA Crim 1608 but is not, in our judgment, relevant in the context of this case.  What was important about Gafoor was that had that appellant been slightly younger, there would have been no possibility of the Crown Court being seized of the case on the basis that the charge which he faced was not a grave crime that could attract the provisions of section 91 of the Powers of Criminal Courts Act 2000.
21.	This case is not in the same category, although Mr Hooper argued that there was a possibility that magistrates might have retained jurisdiction had the case been brought very speedily before them, which he contends it ought to have been.  We simply do not accept that submission.
22.	Contrary to the view accepted by the learned judge, the starting point for an adult in relation to this offence would have been one of 5 years' custody, on the basis that this injury was caused following a premeditated attack, thus the category within the guidance issued by the Sentencing Guidelines Council is not the fourth but the third such category.
23.	Mr Emlyn‑Jones argues that this error of the learned judge was significant; Mr Hooper does not submit that the judge did not err.  In our judgment, it is simply inconceivable that faced with a case where for an adult the starting point was of that order, the magistrates could ever have retained jurisdiction and Gafoor make it clear that the applicability of section 91 takes the case outside the principles which Dyson LJ there enunciates.  In our judgment, this case always would have come and should have come to the Crown Court for sentence.
24.	What then is the appropriate sentence?  In our judgment, there is force in the argument that from the starting point an allowance must be made for the fact that this offender was only on the cusp of 18 years of age.  An allowance must also be made for his guilty plea and the very frank admissions that he provided when interviewed, along with his positive good character, as evidenced both in the information available to us and the pre‑sentence report.  On the other hand, there is at least an argument that the starting point should have been aggravated by the use of a weapon, in the form of his shod foot and by the very gross nature of the attack inflicted upon this victim about his head.
25.	Doing the best we can, taking into account these aggravating and mitigating features, we have come to the conclusion that the learned judge's sentence of 15 months in a young offender institution was indeed unduly lenient, doubtless because he adopted the wrong starting point.  In our judgment, the very least that ought to have been imposed and the sentence we impose, in our judgment, taking into account of all the circumstances, including the fact that this offender has been given a release date, which is only a matter of weeks away, we have come to the conclusion that the proper sentence to pass is one of two‑and‑a‑half years in a young offender institution.  To that extent this Reference succeeds.