Re W (Shared Residence Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,SIR PETER CRESSWELL |
| Judgment Date | 13 February 2009 |
| Neutral Citation | [2009] EWCA Civ 370 |
| Docket Number | No. 2008/04862/A3 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 2009 |
[2009] EWCA Civ 370
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Lord Justice Richards
Mr Justice Christopher Clarke and
Sir Peter Cresswell
No. 2008/04862/A3
Miss P Ahluwalia appeared on behalf of the Applicant
Mr S Ash appeared on behalf of the Crown
Friday 13 February 2009
I shall ask Sir Peter Cresswell to give the judgment of the court.
SIR PETER CRESSWELL:
On 13 August 2007, at Lincoln Crown Court, the applicant, who is now aged 18, pleaded guilty to indictment No T20070154. On 18 October 2007, at Boston Magistrates' Court, the applicant pleaded guilty to five offences and was committed to the Crown Court for sentence. On 19 March 2008, at Lincoln Crown Court, before Mr Recorder Lowne, he was sentenced as follows: on indictment T20070154, for causing grievous bodily harm with intent, detention for public protection; on S20070276, offences 1–4 (arson), 12 months' detention in a young offender institution on each, concurrent, and concurrent with the sentence on the indictment; offence 5 (inflicting grievous bodily harm), an extended sentence of two-and-a-half years made up of a custodial term of 18 months' detention and an extension period (an extended period of licence) of one year, concurrent. Thus the sentence was detention for public protection; the period of 32 months was specified.
It is to be noted that offences 1–4 (arson) are serious specified offences. Having found the applicant to be dangerous, the Recorder was obliged to impose a sentence of detention for public protection in respect of those offences. We will consider this aspect later.
The applicant (now aged 18) was aged 15 at the time of the offences of causing grievous bodily harm with intent and inflicting grievous bodily harm.
The single judge referred the application for an extension of time (five months and 15 days), and leave to appeal against sentence, to the full court. We grant the necessary extension of time and leave to appeal against sentence.
Two co-accused: twins, Carl and Troy Mallett, both born on 3 January 1991, were convicted of causing grievous bodily harm with intent and were sentenced to detention for public protection. Their applications for leave to appeal against sentence were refused by the single judge and have not been renewed.
The facts of the offence of causing grievous bodily harm with intent charged on the indictment were as follows. On the afternoon of 4 November 2006 the appellant was part of a group of between six and eight people in a park in Boston. They approached a smaller group of two girls and two boys, one of whom was a youth called Roberts. They surrounded that group and started to taunt Roberts. They poked fun at his brother for having a stammer. However, they did not use any violence on the group at that point. Ultimately Roberts' group were able to continue through the park.
The group which included the appellant then turned its attention to a 15 year old youth, Ellis, who was playing football with friends. Prior to 4 November 2006 there had been a long and unhappy history between Ellis and the Mallett twins. When Ellis saw the twins, he attempted to run off. He was tackled by one of the twins and subjected to a brutal and relentless attack by the twins and the appellant. Ellis was punched, kicked and stamped on repeatedly. During the course of the attack the appellant produced a knife as he stood over the prone Ellis. He said that he was going to stab him, but fortunately one of the other members of the group took the knife off him.
Ellis was rendered unconscious by the attack. He was taken to hospital, where he was found to have a severe head injury. A CT scan revealed extensive bleeding between his skull and the skin, and there was some contusion to the brain. It took him nearly five days to regain full consciousness.
Shortly after the attack on Ellis, the appellant, the Mallett twins and another youth came across Roberts again (count 5). They caught up with Roberts, who was hit on the head, pushed into a wall, knocked to the ground and kicked in the head. Ultimately he managed to get to his feet, to run off and to seek sanctuary in a petrol station. Roberts later attended hospital, where he was diagnosed as having a fracture to the right zygoma. On 13 November he had an operation to reduce and plate the fracture in his cheekbone. This was carried out via an incision in the hairline to the right temple.
The appellant was arrested. He volunteered the following comments on his journey in the police vehicle: “Yeah, I did smash him in the face. I don't care. I hope he dies. I'll break his legs. He's a div.” In relation to Ellis he said, “I'm going to the hospital to smack him again. I did jump on his head and kick him, and that will teach him to keep his mouth shut”.
When interviewed, he said that a lot of people came over to smack Ellis. He said that he tried to help him initially, but that Ellis started to call him a faggot and said that his mum was gay. He responded by hitting him in the face twelve to thirteen times. He said that Ellis looked like he had had a broken nose and that his jaw was a “bit out of place”. He admitted to stamping on his head a few times. In respect of the assault on Roberts, he admitted to being involved in that. He said that he had punched him to the face.
As to offences 1–3, on 9 March 2007 a woman was awoken by a loud bang at about 4.30am. She ran to the front of her flat to see that her car had been set on fire. She saw a ball of flames inside her car and called the fire brigade, who arrived a short while later. In the meantime, a car belonging to a neighbour had caught fire and fire had also taken hold on her garage door. Both cars were written off as a result.
The appellant was seen in a car with others near the scene. They were stopped and arrested. A petrol can lid was found in the appellant's pocket. Two petrol cans were found near the scene of the fire and one of those had a lid missing.
When interviewed, the appellant admitted setting fire to the first car. He said one of the others had initially cut the petrol pipe in order to steal some petrol. The idea was to put the stolen petrol into the cans they had brought with them, but then concern had been expressed about leaving fingerprints at the scene and so a decision had been taken to set fire to the car. He said that he had not intended the fire to spread to the adjacent car or to the garage.
As to offence 5, the appellant's sister had been romantically involved with a man called Jones, but they fell out after she had seen him with another woman. She told the appellant. On the evening of 29 April 2007 he went out to look for Jones. His attitude was: “He fucks you about, I'm gonna fuck him up”. He was in the company of the Mallett twins. When he came across Jones' car, he smashed a window with a piece of wood. He walked away but returned a short while later, broke another window and set the car on fire by using his lighter on the seats. The fire brigade were summoned. The appellant was arrested at the scene. He admitted the offence in interview.
In passing sentence the Recorder said:
“This level of brutality is very, very unusual, and the way it was orchestrated too is very unusual. Had the attack stopped with James Ellis I would be of this view, but it did not. Having left Ellis in such a pitiful state, the attack on Fraser Roberts took place. Those who engage in this level of violence will have to travel a long, long way before a court can be satisfied that they no longer pose a significant risk of causing serious harm to members of the public. I am not permitted to take the risk, and even if I was allowed to, I would not take it.
I have read all the reports, and I am very much of the view that, at the very lest, all three of you pose a most serious risk of causing serious harm to members of the public. It therefore follows that, in relation to the offence of causing grievous bodily harm with intent, the sentence in respect of each of you is one of detention for public protection. When it is safe to do so —and this might be to your advantage, because if I had to fix a determinate sentence I would be so concerned that it would be of considerable length —that would have been an extended sentence. But for the reasons I have stated, I do not consider that to be appropriate and, as I say, you might get some advantage from it, but that will be for others to decide.
…. an adult offender who engaged in this level of violence could expect a sentence in the order of ten years' imprisonment. Indeed, there are two cases that are remarkably similar, in which the Court of Appeal upheld sentences of twelve years' imprisonment, but where the violence is nowhere near as sustained as yours.
To reflect your young age, and that the offence occurred some eighteen months ago, and to take account of any time spent in custody …. I reduce that starting point to eight years. ….
Stephen Copeland, you have pleaded guilty to the section 18 offence, and you will get full credit for this. Thus the sentence would be, on my calculation 64 months' detention, of which you would serve half, which is 32 months.”
At the conclusion of the sentencing remarks the following exchange took place. Counsel for the appellant said:
“…. your Honour, in relation to Stephen Copeland, he has not been on bail. He has been in custody since 1 May 2007, and I am hoping that there is a calculation of the days.
MR RECORDER LOWNE: I have lowered the initial sentence to reflect lengthy...
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