No: 201604266/A4 

Neutral Citation Number: [2016] EWCA Crim 2227
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 13th December 2016
 
B e f o r e: 
LORD JUSTICE BURNETT
MR JUSTICE WYN WILLIAMS
 
MR JUSTICE SUPPERSTONE

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R E G I N A 
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"CE"

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Mr M Field appeared on behalf of the Appellant
Mr J Foinette appeared on behalf of the Crown

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J U D G M E N T
1.	LORD JUSTICE BURNETT:  The appellant was 16 years and 3 months old when on 17th August 2015 he committed two serious offences of violence as part of a single incident in Margate and an offence of possessing an offensive weapon.  He pleaded guilty to those three counts and was sentenced in the Crown Court at Canterbury on 19th August 2016 by Ms Recorder S Elliott QC to a total of 4 years' detention, pursuant to the powers found in section 91 of the Criminal Courts (Sentencing) Act 2001.
2.	We understand that an order was made pursuant to section 45 of the Youth Justice and Criminal Evidence Act 1999 protecting the identity of this appellant. The papers provided to us from the Crown Court do not record the form of the order but we extend it to these proceedings.  In the result no matter relating to the appellant shall, while he is under the age of 18, be included in any publication if it is likely to lead members of the public to identify him as a person concerned in these proceedings.  The section itself sets out in further detail how that order operates.
3.	The sentence imposed by the learned Recorder was broken down in the following way.  On count 1, which was attempted robbery, contrary to section 1(1) of the Criminal Attempts Act 1981, there was a sentence of 30 months' detention concurrent with count 2.  On count 2, causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, the sentence was 4 years' detention.  On count 4, possession of an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953, the sentence was one of 6 months' detention in a young offender institution to run currently with the other sentences.  That was technically an illegal sentence to which we will return.
4.	The Recorder concluded that if the appellant had been an adult the sentence, after trial, for the section 18 offence would have been one of 8 years' imprisonment.  She reduced that to 6 years to reflect the appellant's age.  She then gave the full discount for his plea to that count to arrive at 4 years.  As we have seen, for practical purposes the sentences on the two other counts were subsumed within the headline sentence.
5.	The issue before us is whether the reduction allowed by the Recorder to reflect the appellant's age should have been more.
6.	The fact were these.  On 17th August 2015, at about 7 o'clock in the evening, two Romanian fruit pickers went into Margate to spend the evening there.  They had very little money on them, only sufficient to buy a little food.  They had paused on the seafront in one of the shelters to have a smoke and admire the view on what was a sunny evening.  They were approached by the appellant and his co‑accused, a man called Armiger, who was 18 at the time and 19 when sentenced.  There were also two girls with them.  Armiger pleaded guilty to the attempted robbery count and to various other offences.
7.	The group had been drinking and some, including the appellant, had been taking drugs.  Nonetheless, at least at first they were entirely friendly to the Romanian men.
8.	The attempted robbery occurred in these circumstances.  The initial relaxed atmosphere changed when the appellant pulled out a Swiss style Army knife and demanded money.  The appellant held it to Mr Neaucsu's throat and he again demanded money.  The two men tried to reason with him.  Mr Neaucsu said that he had children of his own who were about the appellant's age.  With the knife held at that man's throat the appellant told Armiger to demand money from Mr Neaucsu and that if he did not pay up he, the appellant, would kill him.  Mr Neaucsu told him at that point that he had no more than £2 on him.  He was attacked by the appellant who hit him on the shoulder with the hand with which he was holding the knife.  As a result Mr Neaucsu sustained a cut.  
9.	The section 18 offence followed immediately afterwards. The other Romanian man, Mr Cisma, tried to put himself between his friend and the assailants.  The appellant and Armiger began to attack him.  He was first punched and kicked.  He went down to the ground.  He did manage to get a grip on the appellant's hand in an attempt to prevent him from using the knife.  Mr Cisma was at that point repeatedly kicked by Armiger.  The appellant bent down while Mr Cisma was on the ground, lent over him and began biting him.  He bit off the top 3 centimetres of one of Mr Cisma's ears.  
10.	The police had been called. There were a number of other people enjoying the summer evening on the front at Margate, a number of them provided witness statements to the police.  Amongst those present was a group of children on a day trip to Margate.  After the incident of violence was over the appellant and Armiger were seen laughing and joking as they left the area.  The appellant was holding a handful of hair and there were bits of hair in his mouth which he spat out.
11.	The appellant and Armiger were quickly arrested.  The appellant was searched and the penknife was found in his trouser pocket.  He gave a "no comment" interview and initially denied having a knife.
12.	It is unsurprising that the impact of the attack on Mr Cisma has been profound.
13.	The judge concluded that for the purposes of the guideline relating to the section 18 offence there were factors indicating greater harm, including the fact that the injury was permanent and serious and the assault was a sustained one albeit relatively shortlived.  Nevertheless, she indicated that, in the context of section 18 offences, the injuries sustained were not of the most serious. There was no doubt that the appellant played a leading role in the attack.  
14.	A question did arise about whether the attack had been racially motivated.  After it was over the appellant and Armiger were heard to exchange words that at least pointed in the direction of a racial motivation but the judge was not satisfied about that matter and it played no part in the sentencing.
15.	The overall conclusion of the judge was that the offending fell towards the top end of category 2 within the guideline.  The result was that for an adult there would be a range of 5 to 9 years custody, with a starting point of 6 years.  However the judge concluded that because of the overall seriousness of the offending an 8 year starting point would have been appropriate for an adult.  As we have indicated, she then reduced that to 6 years to reflect the appellant's youth.  She conducted a meticulous analysis of the attempted robbery offence before arriving at the sentence we have indicated.
16.	The grounds of appeal originally advanced two arguments.  First, that the starting point of 8 years was too high.  Secondly, that the judge did not reduce that starting point sufficiently to reflect the appellant's age. The single judge, in clear terms, rejected the first argument and it has not been renewed.  He gave leave to enable the second argument to be considered by the Full Court.
17.	Mr Field, who appears on behalf appellant, submits that the materials before the Recorder should have led her to reduce the starting point before discount for plea by more than the 25% that she did.
18.	We have the same materials before us as were before the sentencing judge.  There is a detailed psychiatric report.  There is a pre‑sentence report.  There are two specialist Children and Young People's Mental Health Services report.  Additionally there is a court intermediary report.
19.	Whilst the appellant was just over 16 when he committed these very serious offences, the comprehensive evidence before us shows that he was exceptionally immature for his age.  He was impressionable and easily led astray.  He suffers from learning difficulties.  His immaturity and learning difficulties are particularly reflected in the intermediary's report.  That was prepared on the contingency that there might be a trial. The report speaks of the deficiencies in the appellant's understanding and in his communication skills.  It demonstrates that had there been a trial the proceedings would have had to be tailored in a way which would ordinarily be appropriate for a child of a much younger age.  The psychiatric evidence echos that and is also of independent importance.  The appellant had been involved in two serious violent incidents, for which he bore no responsibility, in the years before these offences were committed, which have left him traumatised.  As an 11 year old he was forced to perform oral sex upon another boy.  He also witnessed the murder of a friend.
20.	Perhaps unsurprisingly these events individually or cumulatively have left him with post traumatic stress disorder.  That in turn resulted in his turning to alcohol and drugs.  Having regard to all of these factors, we are persuaded that the reduction from the notional sentence appropriate for an adult allowed by the Recorder was too little.
21.	The result is that we consider that the sentence of 4 years' detention is manifestly excessive.  We will reduce it to 3 years' detention.  
22.	We have mentioned that the sentence of 6 months' detention in a young offender institution for the offensive weapon offence was not open to the Recorder in this case.  That is because the appellant was too young to receive such a sentence.
23.	We will quash that sentence and order no separate penalty on that count, that is to say count 4.  We quash the sentence of 4 years' detention on the count of causing grievous bodily harm with intent and substitute one of 3 years' detention.  We leave the concurrent sentence on the attempted robbery unaffected. The various ancillary orders made by the Recorder will remain in place.