No:200402733 - 02735 - 02736 A9
Neutral Citation Number:
[2004] EWCA Crim 2062
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 20 July 2004
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE NELSON
MR JUSTICE MCCOMBE
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REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NOs 054, 055, 056 OF 2004
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MISS S WHITEHOUSE
appeared on behalf of the ATTORNEY GENERAL
MISS J HAYNE
appeared on behalf of SAM STECHMAN
MISS C HADFIELD
appeared on behalf of LEE WALTON
MISS K BEX
appeared on behalf of SIMON GRIFFIN
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J U D G M E N T
1.
LORD JUSTICE ROSE: The Attorney General seeks the leave of the court under
section 36 of the Criminal Justice Act 1988
to refer sentences on these three offenders to this court on the ground that they were unduly lenient. We grant leave.
2.
The offender, Stechman, is 16, having been born in January 1988. The offender, Griffin, is 17, having been born in October 1986, and the offender, Walton, is 16, having been born in March 1988.
3.
On 7 November 2003, Griffin pleaded guilty to causing grievous bodily harm with intent, contrary to
section 18 of the Offences against the Person Act 1861
. On 23 February 2004, the two other offenders, Walton and Stechman, pleaded guilty to the same offence. On 16 April 2004, they were sentenced at Inner London Crown Court by Mr Recorder Conlin. Stechman and Griffin were sentenced to a Community Punishment and Rehabilitation Order consisting of 100 hours' Community Punishment and 24 months' Rehabilitation, and both were also subjected to an electronically monitored curfew for six months from 8pm to 8am. In relation to Walton, a Community Rehabilitation Order for two years was made, together with a similar curfew order.
4.
In summary, the three offenders approached the 14 year-old male victim at about 11 o'clock on the evening of 22 August 2003. They took his bicycle, pushed it into his leg, kicked and punched him about the face and body, threatened to kill him, broke his arm and threw him into a nearby canal.
5.
In a little more detail, the victim was sitting on a curb in Dame Street, London N1 on this summer evening. His bicycle was propped behind him. The three offenders approached. The victim recognised the offender, Stechman. Walton took the bicycle and rode it away. Stechman and Griffin walked alongside Walton, laughing and joking. The victim followed, trying to retrieve his bicycle. Walton rammed the bicycle into the boy's right leg, causing him to fall back against a wall. All three offenders then began punching and kicking him about the head and body. The boy pleaded with them to stop. They continued, saying he had better not tell the police or he would get more.
6.
Stechman suggested they kill the victim by "popping" his head on the spikes of some railings nearby. The kicking and punching continued. The boy tried to protect his face with his arm, but Walton pulled his right arm away and said he was going to break it. Thereupon the boy's face became unprotected and Stechman and Griffin punched him repeatedly in the face. All three said they were going to kill him.
7.
They dragged him to the spiked railings and the earlier threat was repeated. Walton suggested that, instead, they should throw him into the canal. That was agreed. They dragged him, still beating him, to the canal. They took off his jacket. They swung him backwards and forwards twice, before throwing him into the canal. He surfaced about halfway across and was able to swim to the other side. As he did so, he heard the offenders say, "Let's throw some rocks at him". They did not in fact throw rocks.
8.
Later, at hospital, it was found that his left elbow was broken in three places. He had bruising around his left eye and right cheek, and abrasions to his forehead, the back of his head, his left arm and knees.
9.
On behalf of the Attorney General, Miss Whitehouse draws attention to the following aggravating features: first, the attack was unprovoked; secondly, it was carried out by three against one; thirdly, the victim was only 14; fourthly, he was kicked with shod feet as he lay on the floor; finally, he was thrown into a canal, with his arm by that stage broken whether the offenders knew it or not, so that he had to swim to survive.
10.
Miss Whitehouse draws attention to the mitigation to be found in the fact that Stechman and Walton were only 15 and Griffin only 16 at the time. Griffin pleaded guilty at the earliest opportunity and had no previous convictions of relevance. It is right to say that none of these offenders has any previous conviction for violence. Walton has a poor record for dishonesty.
11.
Miss Whitehouse drew attention to a number of authorities, including
Attorney General's Reference No 59 of 1996
[1997] 2 Cr App R (S) 250,
Attorney General's Reference Nos 30 and 31 of 1998
[1999] 1 Cr App R (S) 200 and
Attorney General's Reference No 121 of 2002
[2003] EWCA Crim 684
. In
Attorney General's Reference Nos 59, 60 and 63 of 1998
[1999] 2 Crim App R (S) 128 at 131, Lord Bingham CJ, giving the judgment of the court, said this:
"When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra-judicially the punishment that the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim's wounds, there can be little doubt that inadequate punishment adds insult to injury."
12.
The submission which is made by Miss Whitehouse in the light of those authorities and the circumstances of this case is that a community punishment wholly failed to reflect the gravity of the offence and a custodial penalty was required. In consequence, she submits, the sentences passed by the learned Recorder were unduly lenient.
13.
On behalf of Stechman, Miss Hayne concedes that the sentence was lenient and that the authorities show that custody is ordinarily appropriate. But, she submits, there are, in the present case, personal circumstances of mitigation so far as Stechman is concerned which justify a non-custodial penalty. She points out, as we have already said, that he is only 15 and he has no previous convictions. This offence was entirely out of character. He had been drinking heavily, not looking for violence. He accepts that what he did was appalling and despicable. But, she submits, he has shown genuine remorse and has made progress in the months which have passed since he was sentenced in April. He has not breached his order. He has, it is true, difficulty in talking about the offence, but he is only 16, even now.
14.
There are indications in one of the pre-sentence reports upon him that he is experiencing difficulty in expressing sympathy with the victim. Miss Hayne points out that the nature of the area where he lives is such that he is being taunted by some for his part in this attack and taunted by others for having pleaded guilty to the offence. Sadly, as Miss Hayne points out, his grandfather died soon after the offence was committed, but before Stechman was sentenced. She submits that he has taken such opportunity as was presented by the Recorder's sentence to show signs of improvement for the future, and she asserts he will not be before the courts again. He spent a week in custody before he was sentenced by the Recorder.
15.
Miss Hadfield, on behalf of Walton, accepts that the sentence was an unusually lenient one, but he spent some seven months in custody before he was sentenced, and during that period, had to endure the death of a baby born prematurely to his girlfriend of which he was the father.
16.
Miss Hadfield's second submission is that, even if the sentence was unduly lenient, the court should not exercise its discretion to interfere with it. She stresses the plea of guilty, the absence of premeditation and the lack of any sign of violence in the offender, Walton's, previous record. She said that it was not obvious why in Walton's case the Recorder had imposed a different sentence to that imposed on the other two offenders. But it may be that he had in mind the fact that Walton had already spent seven months in custody.
17.
Miss Hadfield drew attention to the contents of the reports upon Walton, indicating that he has taken responsibility for doing that which he did, and has written a letter of apology and expressed his remorse. He has an unhappy youthful background, having been in and out of care, in particular during the currency of previous supervision orders.
18.
He has apparently been in breach of the curfew order which the Recorder imposed, and that is due to be dealt with later this week. That came about because he left his mother's address and he is now apparently living in sheltered accommodation. It is apparent that the evidence which his mother gave before the Recorder, indicating an apparent increase in maturity following the death of his baby, had a significant influence upon the Recorder.
19.
Miss Hadfield submits that, in view of Walton's age, the balance in his case tips in favour of rehabilitation rather than punishment. He has responded to the order which was made and has engaged fully, apart from the breach of curfew to which we have referred.
20.
Miss Hadfield refers to double jeopardy, that is the second sentencing process, which is involved in all Attorney General's References, and she submits that the offender, Walton, is being rehabilitated by the sentence which the Recorder passed.
21.
On behalf of Griffin, Miss Bex stresses that he displayed courage in that he was the first to plead guilty: by reason of that, he is entitled to maximum credit. He has been on bail throughout and for a short period worked. Indeed his then employer gave evidence before the Recorder as to how well he was doing after some two weeks, and the Recorder was clearly impressed by that. The present position is that the offender is not living with his mother. He has been sleeping at her garden gate and breach proceedings in relation to the curfew are to be considered by the youth court next week. She accepts that he has, as is apparent from the reports, failed to comply with the punishment part of the order, and he has, according to the report, been verbally abusive to staff. She submits that his present position, as we have briefly described it, is cruel so far as he is concerned.
22.
There are clearly particular circumstances of mitigation affecting each of these three offenders in different ways: in relation to Stechman, the sad death of his grandfather; in relation to Walton, the sad death of his baby; in relation to Griffin, his early plea of guilty. Looking at the picture in the round, we are satisfied that no distinction should be drawn in the way in which the three offenders are dealt with.
23.
This was a terrible offence - in its persistence, in the variety of violence, in the numbers involved, and in its culmination in the victim being cast into the canal. The physical injuries were serious and included the multiple fractures of the elbow, to which we have referred. There were mental injuries as well. The victim has required psychological treatment. That being so, notwithstanding the pleas of guilty and the youth of all these three offenders, we would have expected a sentence in the court below in relation to each of them of three years' detention under the
Powers of Criminal Courts (Sentencing) Act 2000, S.91
. That is not a sentence which this court should now impose, having regard both to double jeopardy and the fact that, if they are incarcerated now, having previously been at liberty since they were sentenced, a further discount is called for from the sentence which would be appropriate. Taking those matters into account, subject to one matter in relation to Walton, which we will deal with, the sentence which would here be appropriate in relation to all three offenders is a Detention and Training Order of two years.
24.
So far as Walton is concerned, because, as we have said, he has spent seven months in custody prior to sentence which period would not count towards his sentence, the sentence which we impose on him is a Detention and Training Order of 12 months. In relation to Stechman and Griffin, the sentence is a 24-month Detention and Training Order. Those sentences will start to run when the offenders respectively surrender to custody.
25.
Miss Hayne, Miss Hadfield, Miss Bex, so far as surrender is concerned, we know not whether or not they are here at court?
26.
They are present in court. Is there any reason why they should not surrender now?
27.
MISS BEX: My Lord, no.
28.
LORD JUSTICE ROSE: We shall direct that they surrender at 1 o'clock.