Attorney General's Reference (No. 32 of 1996); R v Whittaker (Steven Alan)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 18 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Crim J0718-8 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 96/3279/R2 |
| Date | 18 July 1996 |
[1996] EWCA Crim J0718-8
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Mr Justice Owen
and
Mr Justice Connell
No. 96/3279/R2
Attorney General's Reference Nos. 32 of 1996
Under Section 36 of the Criminal Justice Act 1988
MR ORLANDO POWNALL appeared on behalf of the ATTORNEY GENERAL
MR SHAUN SMITH appeared on behalf of THE OFFENDER
Thursday 18 July 1996
The Attorney General seeks leave under section 36 of the Criminal Justice Act 1988 to refer to this court for review a sentence which he regards as unduly lenient. We grant leave. The offender is Steven Alan Whittaker, who is aged 37. On 14 February 1996 he was acquitted of attempted murder but convicted of causing grievous bodily harm with intent, which had been charged in the alternative. Sentence was adjourned pending the preparation of pre-sentence and psychiatric reports. On 17 April 1996 the offender was sentenced to seven years' imprisonment.
The story can be largely taken from the sentencing observations of the judge. It is convenient to begin many years ago when the offender was first involved in serious crime. The judge said:
"On 23 January 1978, when you were 19 years old, you were convicted of murder and sentenced to a term of life imprisonment. The facts of those matters are that in September of the previous year you and another man were drinking in an area of Liverpool. You were with your victim. Some disagreement arose between you. In the early hours of the morning you were seen on waste ground kicking that man who offered no resistance. You went through his pockets, removing various items. You jumped with both your feet on to his face. You then took off some shoes and hit him on the face. Your victim died as a result of your violent assault."
It appears that on that occasion the offender was willing to plead guilty to manslaughter, but was convicted of murder. He was accordingly sentenced to life imprisonment and spent a very long period in prison.
In 1990, however, he was assessed as being suitable for placement at a pre-release hostel in Birmingham. Unhappily that placement was not a success. Within a month he was returned to custody as he persistently returned late from days out and home leave. His imprisonment therefore continued.
In 1994 the offender was again recommended for release. On Friday 25 November 1994 he was granted home leave from Foston Hall where he was then confined on condition that he reside at an address in Derby. He was due to return to Foston Hall on Monday 28 November 1994. Unhappily the events giving rise to the present conviction intervened. They occurred the very day after his release on home leave. Again we quote from the language used by the judge in his sentencing remarks:
"On 26 November 1994 both you and Caroline Minor, a young woman, were in a night club in Ashbourne, near Derby. Neither of you knew each other, but you noticed her. In the early hours of the morning of 27 November she left the night club to walk home to her parents' home in Cullen Avenue. At about 1.15am she went to a Chinese take-away and 10 minutes later she turned off Cullen Avenue into the pathway to her parents' home. Little did she know what would happen to her.
About the time she left the night club you left too. You had consumed some alcohol and in the words to the police in your interview you said that you were merry but not drunk.
I am satisfied that you either followed her home or you found out where she lived.
Before she got to that pathway you had hidden yourself in a gap in a hedge running alongside the pathway. As she came up that pathway you jumped out in front of her. Twice you told her that you were going to kill her. You punched her at least once in the face, fracturing her left cheek bone. She fell to the ground on her back. You got astride of her, put your hands round her neck and squeezed extremely tightly, such as to leave reddening and linear marks on her neck. She cried out. Her father heard her. He opened the window of his bedroom and called out to his daughter that he was coming. You fled.
But for the intervention of her father I am satisfied you would have continued with your violent attack on her and that might have resulted in her being even more seriously injured than she was or even, possibly, her death. She was terrified by your attack. She does not remember being rescued by her father or taken into the house. Her father told the court that she was in a terrible state and that she kept saying that she could not see anything.
Later on that morning, at about half past five when she was examined by Dr Spinser, she kept breaking down and crying and was extremely upset. The doctor said in evidence that in his opinion her assailant applied a lot of force on her neck.
When she gave evidence she had to relive the terror of that night. She will have the memory of that dreadful attack for the rest of her life and, no doubt, she will feel quite unsafe walking on her own late at night. She has been severely traumatised."
Those were the judge's observations following the verdict of the jury which acquitted the offender of attempted murder but convicted him of causing grievous bodily harm with intent.
It is plain that the judge had a difficult sentencing exercise to carry out. There were before him three theoretical possibilities: (1) to impose a determinate sentence of appropriate length; (2) to impose an extended sentence under section 2(2)(b) of the Criminal Justice Act 1991; (3) to impose an indeterminate life sentence.
It is common ground between counsel, and as we think correctly so, that the second of those possibilities is to be excluded. Section 2(2)(b) permits an extended sentence to be passed when it is in the opinion of the court necessary to protect the public from serious harm from the offender. It is pointed out that the offender is already subject to a life sentence and will always be subject to the licence which is an integral part of that sentence. Accordingly the imposition of an extended sentence cannot be necessary for the protection of the public since the means to afford such protection already exists. That therefore means that there...
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