No:
200401541 A4
Neutral Citation Number:
[2004] EWCA Crim 1754
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 16th June 2004
B E F O R E:
LORD JUSTICE KAY
MR JUSTICE CURTIS
MR JUSTICE NEWMAN
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REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 30 OF 2004
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MISS B CHEEMA
appeared on behalf of the ATTORNEY GENERAL
MR L WILCOX
appeared on behalf of the OFFENDER
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J U D G M E N T
Wednesday, 16th June 2004
1.
LORD JUSTICE KAY: Her Majesty's Attorney General seeks the leave of the court to refer to it a sentence that he considers to be unduly lenient pursuant to
section 36 of the Criminal Justice Act 1988
. We grant leave.
2.
The offender is now 30 years of age, 29 at the time when he was sentenced.
3.
On 5th September 2003 he pleaded not guilty to a count of wounding with intent. Following two further hearings the matter was listed for trial.
4.
On 20th January 2004, the day on which the trial was due to begin and when all the prosecution witnesses had attended, the offender was re-arraigned and entered a guilty plea on a written basis. The basis of the plea was not disputed by the Crown. Sentence was adjourned for the preparation of a pre-sentence report.
5.
On 13th February 2004 His Honour Judge O'Malley, sitting at the Taunton Crown Court, sentenced him to three years' imprisonment.
6.
The facts are these. On 6th June 2003 the victim, a 36 year old man called Scott Hunter, was spending the evening with a friend in a local public house and then the bar of an hotel, where they were both known. At about 9.30 pm the victim went to put some money into the jukebox which had gone quiet. Whilst there the offender came up to him and said that he had three credits left in the jukebox. Without looking at him, the victim said that they may have been lost, but if they were still there after his selection had been played the offender could have them. The offender left and the victim went and sat down with his friend.
7.
About ten minutes later, without any sort of warning, the offender approached him and struck him from behind with a hard blow to the right side of his head, which knocked him over to the left. Hunter described it as a dull sensation. As he looked up, Hunter saw the blur of a hammer coming towards him again. He was struck again, and as he moved away he was struck for a third time, the blow landing on his shoulder when he put his hand up to protect himself. The barmaid who was present described the offender holding the victim down with one hand as he swung the hammer down.
8.
The blows were in quick succession and left the victim bleeding onto his face, neck and clothing. When he came to his senses he saw the offender being restrained by other men, while he shouted words to the effect, "That'll teach you to take my free credit". The offender was then seen to pick up a glass ashtray and throw it at the victim, although, fortunately, it missed.
9.
The offender was removed from the bar and the hammer was taken from him. When he was leaving the premises the victim came across the offender, who continued to abuse him about the jukebox. The hammer was taken behind the bar by the barmaid and later given to the police.
10.
The following day the victim felt slow, as he described it "dopey", but went to work. Once there his colleagues realised he was unwell and took him to hospital. He was x-rayed and it was discovered from a CT scan that he had a depressed skull fracture and damage to the dura (the membrane lining the brain). An operation was carried out under general anaesthetic so that the depressed skull could be elevated. It was clear at the operation that a blow of considerable force had been struck as it was sufficient to drive a disc-shaped wedge of bone deep into the skull surface. Hair and skin fragments had been driven through the skull and were found amongst the bone fragments lying over the dura which had been breached by the blow. The wound was cleaned and the skull was re-secured with titanium plates. Fourteen clips were then used to close the site. He also had a cut to his right ear and a numb shoulder that lasted a few days. He had to spend three days in hospital.
11.
There have been after-effects from the assault. The victim experienced headaches every day for about a month, then intermittent pain in the area of the scar. He has experienced a constant high-pitched noise in the head, more noticeable at night in the quiet, which has interfered with his sleep. He has a 5-inch scar and a cranoid depression at the site of the main injury. There was, as a result of the injury, a risk of epileptic seizures, although none, fortunately, had been suffered by the time of the sentencing hearing. He was not allowed to drive for six months or play football. He himself was aware of a personality change in that he had become quiet and shy and reluctant to socialise, whereas before the assault he was confident and outgoing. He found it harder to concentrate for long periods and carried out tasks at a slower pace. In January 2004 the victim was still receiving treatment and was due to see a hearing specialist in respect of the constant noise in his head.
12.
Mr Hunter has since felt compelled to avoid two nearby towns because he has been afraid that he might come across the offender or his friends. He has lost his employment as a result of the attack and now earns less than he did before.
13.
On the night of the incident the police were called but the offender had by then left. He subsequently surrendered voluntarily to the police on 23rd June. In interview, he admitted owning the hammer. He explained that it was a work tool. He also admitted that he was responsible for the assault, but claimed to have been too drunk to remember the incident, apart from the argument at the jukebox with a young man whom he did not know. After the argument the offender claimed to have left the public house, only returning because he had forgotten to take his bag of tools with him. He had taken 14 pints of a mixture of lager and bitter and had been extremely drunk. The next thing he recalled was being dragged out and told he had hit someone with a hammer. He did not at that stage accept three blows as he could not remember them and he thought that the victim was exaggerating. He expressed remorse at the end of the interview for using the hammer. He said: "Just about the business with the hammer. It was a very stupid move and I'm sorry for it. I was drunk with beer. That's all I can say". He had also told a mutual friend that he was sorry for the injuries.
14.
The basis of plea, as it was put forward when he entered his plea of guilty, was as follows:
15.
Firstly, the offender had been working all day in hot weather without food or drink. When he subsequently took alcohol the effect was more marked.
16.
Secondly, the offender did not recall the assault but admitted forming a drunken attempt to cause the victim grievous bodily harm.
17.
Thirdly, the offender bitterly regretted the incident and injuries. As soon as he realised what had happened he contacted his solicitor and surrendered to the police.
18.
Finally, he had always maintained a plea to causing the injuries but contested the element of specific intent due to his drunken state. Upon service of medical evidence confirming that three blows were struck, he accepted that he must have formed the drunken intention that was required.
19.
The offender has previous convictions, and over the eight years between 1992 and 2000 he was convicted of over 40 offences, ranging from criminal damage and driving offences to assault occasioning actual bodily harm, robbery, burglary, possession of cannabis, handling and public order matters. Significantly, the offences of violence were ten years old and there were no details available as to exactly what they were. They had resulted in short terms of imprisonment. He had been dealt with in a variety of ways including imprisonment, fines and community service.
20.
On behalf of the Attorney General it is submitted that this case had a number of aggravating features: first, the use of the hammer as a weapon; second, this was an unprovoked attack on a stranger in public; third, the victim was struck repeatedly and the offender only desisted when others intervened; fourth, the deliberate and forceful striking to the head of the victim, which caused a significant injury in that the section of the skull was driven into the dura together with surrounding skin and hair; fifth, it was a case with serious and lasting consequences from the injuries, including the insertion of metal plates and the consistent ringing in the ears which was still unresolved; finally, there was his past history of offending.
21.
It is recognised, on the other side, that there were a number of mitigating features. Firstly, there was the plea of guilty. The judge, in dealing with the plea of guilty, made it clear that he viewed it as a significant plea, bearing in mind that he accepted that the appellant had no actual recollection of what he had done. Next, it was recognised that there was genuine remorse, demonstrated particularly by contact with a prosecution witness and what he had said then, and also by the very act of surrendering to the police. Next, the judge viewed the matter as being one which was out of character. Bearing in mind his earlier violent history, it must be that the judge meant by that, firstly, that this was far more serious than anything he had ever done before, and, in particular was outside his recent character in that he had not behaved violently for a significant number of years. Finally in terms of mitigating features, it is recognised that this is an appellant with a difficult personal history, in particular, he had a history of drug abuse, and that he had made a significant effort to try and reform, assisted by his father, and that there had been a significant improvement in his behaviour as a result of his efforts.
22.
The Attorney General submits that the sentence was unduly lenient and, in particular, contends that the sentence failed to mark adequately the gravity of the offence and the aggravating features present. It is submitted that the learned judge gave too little heed to the high degree of force used in the assault and too great credit for the mitigating features in the case, including the late guilty plea. It is also submitted that this is a sentence which will fail to act as a deterrent to others considering committing similar offences and one which failed to heed the proper concern in society in respect of violent offences of this kind which cause harm to a wholly innocent victim.
23.
In support of those contentions, we have had our attention drawn to a number of authorities:
Attorney General's Reference (No 18 of 2002)
, the case of Hughes,
[2003] 1 Cr App R (S) 9
at page 35;
Attorney General's Reference (No 36 of 1996
), the case of Johnson, [1997] 1 Cr App R (S) 363; and
Attorney General's Reference (No 68 of 2002
), the case of Stephen Catterill,
[2003] 1 Cr App R (S) 94
. Further, our attention was drawn to a very recent decision of this court, in respect of which there is no full transcript,
Attorney General's Reference (No 12 of 2004)
, the case of Alfred Washington Weeks, which was heard by this court on 19th May 2004. We have a short report in relation to that but no further information over and above the short report.
24.
In addition, whilst we are referring to the authorities that we have considered, Mr Wilcox, on behalf of the offender, also drew our attention to the case of
Attorney General's Reference (No 11 of 1992
), the case of Howes, [1993] 14 Cr App R (S) 136.
25.
Many of those authorities have similar features to the offences in this case, although one can never find two cases that are exactly the same and they can do no more than provide general guidance as to the appropriate level of sentencing.
26.
On behalf of the offender, Mr Wilcox submits that whilst he accepts that the sentence was a lenient sentence, it cannot properly be characterised as being unduly lenient. He submits in those circumstances that the court ought not to interfere with the existing sentence, and if it feels compelled to do so should raise it by no more than the minimum that is consistent with the court's duty.
27.
We have carefully considered all the submissions in this case and we find ourselves agreeing with the Attorney General that the sentence was unduly lenient. This was a very savage attack on a wholly innocent person. There was not even the sort of background that one often finds in cases of this kind where there had been some quarrel and somebody simply took the quarrel out of the league in which it ought to have been. The victim here was a person going about his ordinary business, legitimately behaving in a public house, who, for no sort of reason at all, was attacked in this savage way. It is further significant, in our judgment, that the appellant had left the public house after the minor episode with the victim and actually returned to the public house in order to collect his tools and then, and only then, well removed from any contact which he had with the victim, he attacked him at that stage. Further, there were a number of separate blows, and even when he was taken hold of by others, he was still attempting to throw the ashtray at the victim. Those are serious features.
28.
The other critically important feature, in our judgment, is the extent of the injuries suffered by the unfortunate victim. There is no doubt that the blow to the head has caused him serious long term consequences. Just how those will resolve in the future is impossible to tell, but this is a case where there has been serious injury leading to consequences that will go on reminding the victim of this very unpleasant attack for a substantial length of time.
29.
In our judgment, facts of that kind, even on a guilty plea, merit a longer sentence than the one imposed by the judge. Our conclusion in this case, and one we believe in line with the authorities to which we have been referred, is that the proper sentence in respect of this matter, following a guilty plea, which was entered at the door of the court, would have been a sentence of the order of five and a half to six years.
30.
We have, as is always the practice of the court in a case of a referral of this kind, to make an allowance for what has become known as double jeopardy; that is, the fact that, through no fault of his own, the appellant has had to go through the sentencing process twice. We make that allowance.
31.
We think the justice of this case would be met if we reduced the sentence from that which we have indicated to one of four and a half years' imprisonment. Accordingly, we quash the sentence of three years' imprisonment and substitute for it one of four and a half years' imprisonment.