No:
200401019/A7
Neutral Citation Number:
[2004] EWCA Crim 2723
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Monday, 18th October 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS
MR JUSTICE BEAN
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REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 20 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)
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MR R HORWELL
appeared on behalf of the ATTORNEY GENERAL
MR J DOYLE
appeared on behalf of the OFFENDER
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J U D G M E N T
1.
THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under
section 36 of the Criminal Justice Act 1988
, to refer a sentence said to be unduly lenient. We grant leave.
2.
The offender is 29 years of age, having been born in June 1975. He was indicted on two counts, each of wounding with intent, contrary to section 18 of the Offences Against the Person Act. The victim in count 1 was a Mr Kanata and in count 2, a Mr Kavira. The offender pleaded not guilty to both counts. He was, following a trial between 4th and 14th November 2003, convicted on count 1 but acquitted on count 2. Sentence was adjourned for reports and, on 26th January 2004, he was sentenced by His Honour Judge Bathurst-Norman, at Southwark Crown Court, to 5 years' imprisonment.
3.
In summary, he had armed himself with a steering lock and, together with another man, armed with a knife, assaulted Mr Kanata in a vicious and wholly unprovoked attack. The consequence was that Mr Kanata suffered very severe brain injuries and remains and will remain profoundly disabled for the rest of his life.
4.
Mr Kanata was, at the time of the attack, 24 years of age. He was born in Morocco in February 1980 and is a Spanish national. He came to work in the United Kingdom in 1998. Pausing there, it is not suggested that this attack, terrible though it was, was in any way racially motivated or aggravated.
5.
On the evening of Friday 4th May 2001 Mr Kanata was with three other friends in a house in Hackney Road, E2. At about 3.30 in the morning of Saturday, the following day, a number of those present set off to buy food from a nearby Texaco petrol station. The group consisted of Mr Kanata, Mr Kavira, Mr Beoladj and a Mr Duncan. As they were giving their order to the cashier at the petrol station, a car, driven by the offender, pulled up at the petrol pump nearest to them. There were two passengers in addition to the driver. The offender attempted to obtain petrol from the pump but, at that time in the morning, the pumps would not operate unless payment was made in advance. In consequence, the offender went to the cashier's window, pushing to the front of the group of men of whom Mr Kanata was a member. Mr Kanata protested. There was an argument between him and the offender. At that stage, the offender returned to his car and signalled to his two passengers to get out. The offender took from the boot of the car a steering lock. Together with the other two he advanced towards the group at the cashier's window. The group buying the food were, of course, unarmed. The offender, as we say, had the steering lock. One of his two passengers had a knife.
6.
The passenger armed with the knife stabbed Mr Kavira and that offence was the basis of count 2 of which, as we have said, the offender was acquitted. The same knife-armed passenger and the offender then confronted Mr Kanata. The passenger stabbed Mr Kanata and the offender hit him over the head and shoulders with the steering lock which he was holding in both hands. Mr Kanata tried to get away. He was chased by the offender, who continued to hit him about the head and shoulders with the steering lock. Mr Kanata collapsed to the floor. He got up. The offender chased him and hit him again with the steering lock. Again Mr Kanata fell to the floor and again he managed to get up. Again he was hit by the steering lock. The offender used, according to more than one witness, a swinging motion, with the steering lock held in both hands above his shoulder. There was however one witness, as Mr Doyle on behalf of the offender pointed out, who suggested that the offender was striking blows in a rather halfhearted manner. That is not the picture created by the other witnesses. Mr Kanata collapsed yet again. This time he did not get up. The offender returned to his car and drove away.
7.
Mr Kanata was admitted to hospital unconscious. He had three stab wounds in the chest and abdomen, one of which penetrated the pericardium. The consequential loss of blood caused severe hypoxic brain injury. The prognosis, which remains as effective today as when given 3 years ago, was and is that Mr Kanata is deeply disabled by the brain injury caused by the stab wounds to the heart and chest. He is effectively blind. He is immobilised by a dense spastic tetraplegia complicated by flexion dystonia and contractions in the upper limbs, especially the right. He has no useful movement of any limb and is confined to a wheelchair. He is doubly incontinent and totally dependent on 24 specialist nursing. No significant change is to be expected. The consequences, not just for Mr Kanata but for the other members of his family, have been devastating.
8.
Following these events there was an extensive public appeal. Information was received. Suspicion fell on the offender, although the other two involved in this incident have not been traced. A search warrant was executed in September 2001 at the offender's home, but he was not present. He was arrested on 3rd December 2002 at Stanstead Airport, about to leave the country on a one-way ticket to Malaga with a sum in excess of £1,300 in cash in his possession. When he was interviewed, he made just one reply to the questions which he was asked: "I'd just like to say I never stabbed anybody, that's all I'd like to say." At the trial, the offender's defence was alibi.
9.
On behalf of the Attorney-General Mr Horwell draws attention to what he rightly submits are six aggravating features. First, the offender instigated the attack and enlisted the assistance of the two others. Secondly, both the steering lock and the knife were used as weapons. Thirdly, the victim was unarmed. Fourthly, the attack was unprovoked. Fifthly, the attack was planned. Sixthly, the injuries were extremely severe and permanent.
10.
Mr Horwell draws attention to the mitigation to be found in the fact that the offender is of previous good character.
11.
Mr Horwell draws attention to four authorities,
R v Palma
11 Cr App R(S) 329,
R v Hailes
13 Cr App R(S) 540,
R v Moseley
[1999] 1 Cr App R(S) 452 and
R v Robertson
[2003] 1 Cr App R(S) 143. The submission which he makes is that, in the light of those authorities, the sentence passed by the learned judge was inadequate to mark the gravity of this offence and its aggravating features, the need to deter others who might be minded to act in this way and public concern over the gratuitous use of violence, especially involving the use of weapons.
12.
On behalf of the offender, Mr Doyle submits to the Court a letter written by the chaplain at the prison where the offender is detained. He speaks of the offender being hard working and determined to live a life beyond prison, when able to do so, and to contribute to society in a positive and constructive manner. He is not the sort of streetwise prisoner sometimes encountered. He is a simple, likeable character, though he does not appear to be vulnerable to manipulation. The chaplain had hoped to attend Court today but, by reason of short staffing, is unable to do so. We have regard to all that he says in that letter. Mr Doyle has also placed before us a letter from the mother of one of the offender's children, which speaks in graphic terms of the impact upon the children of the offender's incarceration. Mr Doyle refers to the psychiatric evidence before the Court which indicates that the offender has suffered from depression and claustrophobia, the latter of those conditions bearing on the effect on him of imprisonment.
13.
Mr Doyle submits that, although this incident was planned, it took place in a very short space of time. He also comments, in passing, that the sole issue at trial was one of identification and the issue of joint enterprise may not have been investigated as fully as it might have been. We observe in relation to this that the jury acquitted on count 2 and only convicted the offender on count 1 which suggests a careful assessment by them of joint enterprise.
14.
All of these matters we take into account. So far as this very grave offence of wounding with intent is concerned, we would have expected in the court below, following a trial, a sentence of at least 12 years' imprisonment. It follows that the sentence passed upon the offender was unduly lenient.
15.
We take into account double jeopardy, that is to say that the offender is being sentenced a second time. We also take into account, to the limited extent which it is permissible to do so, the circumstances of personal mitigation which are advanced on behalf of this offender. Having regard to those matters, we quash the sentence of 5 years which was passed in the court below and substitute for it a sentence of 9 years' imprisonment.