[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Downing, R. v [2017] EWCA Crim 817 (24 May 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/817.html Cite as: [2018] 4 WLR 4, [2017] EWCA Crim 817

[New search] [Printable RTF version] [Buy ICLR report: [2018] 4 WLR 4] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London, WC2A 2LL
		24 May 2017

1. THE VICE PRESIDENT: At a plea and trial preparation hearing on 27 February 2017, the offender, having previously indicated pleas of guilty, pleaded guilty to two counts: count 1, assault occasioning actual bodily harm; count 2, attempting to cause really serious bodily harm with intent. On 13 March 2017 at the Middlesbrough Crown Court, His Honour Judge Armstrong sentenced him to 12 months' imprisonment on count 1 and an extended sentence of 8 years' imprisonment on count 2, comprising a custodial term of 4 years and an extension period of 4 years. Both sentences were ordered to run concurrently. The offender was also made subject to a restraining order and ordered to pay a victim surcharge.

The facts

2. Amanda Baikie and the offender were in a relationship and had been for about five years. They had two children, both of whom were under three years. Mrs Baikie had a son, Lewis Pratt, from a previous relationship. At the time of the offences he was 16 years of age.
3. On the evening of Saturday, 28 January 2017, the offender went out for drinks with some family members. Lewis was staying that weekend. At about 4.44 on the Sunday morning the offender telephoned the house. He was drunk and angry. He told Mrs Baikie to make him some food for when he got home. He complained about Lewis staying over. Mrs Baikie knew that the offender could be violent and unpredictable when in drink, and from the tone of his voice she feared for her son's safety. She went to Lewis's bedroom to tell him the offender was on his way home and that he was angry. She begged her son to barricade himself in the room using the wardrobe. Lewis was also aware of the offender's capacity for drunken violence. He got dressed, but got back into bed and did not barricade his door.
4. The offender arrived home about 30 minutes later. He was very abusive to Mrs Baikie; he called her "lazy" and "a fat slag". He grabbed a 4-inch knife from the kitchen and held it to her left arm. She begged him not to hurt her. As she tried to move away, the blade cut her skin. Still holding the knife, the offender asked where Lewis was. Mrs Baikie panicked and ran out of the house to call the police, terrified of what the offender might do to her and Lewis. She turned as she ran and saw the offender advancing up the stairs with the knife in his hand. The offender walked into Lewis's room and jumped onto the bed with the knife in his hand. He grabbed Lewis by the throat and said, "Who the fuck do you think you are? You're not a hard boy." Lewis struggled to breathe. Lewis could see the knife in the offender's hand. The offender raised the knife and lunged at Lewis's face. Lewis raised his hand to protect himself and the blade cut the top of his thumb. The wound poured with blood and Lewis shouted out in pain. The offender released his hold on Lewis's throat but then lunged at Lewis's face several more times with the knife. Each time Lewis tried to fend off the blows with his hands. He was unable to block one of the blows and the blade of the knife caught the bottom of his left eye, causing another cut that also bled.
5. By now, Lewis was shouting and screaming for the offender to leave him alone. The offender grabbed Lewis by the throat once more. Lewis was terrified. He made a grab for the knife and the two of them tussled for it. Lewis believed the offender injured himself as they struggled for control. The offender suddenly released his grip, climbed off the bed and calmly left the room. Lewis walked down the stairs behind the offender and asked if he could wash the blood off his face. The offender told him, "I wouldn't hurt you, mate."
6. The offender walked into the kitchen clutching his side from where he was bleeding. Lewis came into the kitchen and saw the offender in pain. He asked the offender if he wanted an ambulance, but the offender declined. By this stage the police had arrived and Lewis ran out to meet them. The offender saw him running towards them with blood rushing down his face and on his hands. Lewis shouted, "He's got a knife. He stabbed me. Be careful, he's dangerous."
7. Nevertheless, PC Doherty stepped inside the house and shouted to alert the offender to the police presence. The offender called back from the kitchen, "Come on then, gas me and see if I give a fuck." A number of officers armed with Tasers then entered the house. They found the offender in the kitchen. He was leaning against the counter, smoking a cigarette. A bloodstained knife was close to him on the work surface. The offender said, "Go on then, Taser me. See if I fucking care." The officers approached the offender and handcuffed him. It was obvious to them that he was heavily intoxicated. They escorted him outside and into a police van. When he was arrested on suspicion of wounding with intent, he said, "You're having a fucking laugh, aren't you?"
8. Back at the house, PC Doherty spoke with Lewis. The officer could see that Lewis had a stab wound under his left eye and a deep laceration to the thumb on his left hand. He also had minor cuts to his right hand. The offender answered "no comment" to all questions in interview.

Offender's Background

9. The offender has 54 previous convictions from 20 court appearances. His relevant previous convictions are as follows:

(i). On 15 January 2000 he committed an offence of assault occasioning actual bodily harm, for which he received a probation order of 12 months. During a street fight, he punched the victim around the head and bit him.

(ii) On 7 March 2004, he committed an offence of wounding with intent, for which he was sentenced to 3 years' imprisonment. The offender set his dog on the victim and the dog bit the victim several times.

(iii) On 16 October 2005, he was convicted of an offence of unlawful wounding and possession of an offensive weapon, for which he received an extended sentence of 5 years' imprisonment, comprised of 3 years' custody and an extension period of 2 years. The offences were committed in breach of his licence from the earlier wounding offence. During a fight outside a pub when the offender was in drink, he stabbed the victim seven times.

10. In a pre-sentence report dated 9 March 2017, a probation officer, recorded the offender's admission that he drank to excess and took drugs. He said that his recollection of events was not good. He remembered an argument with his partner about drinking and said this escalated into violence. He maintained he had struck Mrs Baikie with a potato peeler and not a knife, and he denied assaulting Lewis in the bedroom. He said he may have grabbed him by the throat when he came downstairs. He could not remember stabbing Lewis, but accepted the account put forward by Mrs Baikie and her son. He denied any previous violence to Mrs Baikie as had been described by Lewis, and described himself as being like a 'stepfather' to Lewis.
11. The author of the report expressed great concern about the link between the offender's violence and his alcohol consumption. His compliance with previous sentences had been poor and he presented a medium risk of re-offending and a high risk of harm.
12. In addition, we have before us a report on his response to custody since 13 March 2017. Unfortunately, there have been a number of instances of concern to the authorities.
13. Impact of offences
14. Lewis stated that the offence had left him in shock and struggling to understand what had happened and why. When he wrote his statement he was still in severe pain from the injuries to his hand and throat and he was fearful of what the offender would do to him and his mother. In her witness statement, Mrs Baikie stated that the whole episode had made her afraid of the offender and left her feeling ashamed that she had run away to get help and left her son alone with him.

Sentencing hearing

15. Prosecuting counsel referred the judge to the Sentencing Council's Definitive Guideline: Assaults. In her submission, with which Mr Mochrie for the offender agreed, count 2 fell into category 2 because there was lesser harm but higher culpability, the use of the knife. This provided a starting point of 6 years' imprisonment with a range of 5 to 9 years. She submitted that count 1 was a category 2 offence because of the use of the knife, but suggested that the starting point for a category 2 offence was 18 months' imprisonment and a range of 1 to 3 years. In fact, that is the starting point and the ranges for a category 1 offence. She referred the judge to the aggravating feature of the offender's previous convictions and tentatively raised the suggestion there might be two others, namely the particular vulnerability of Lewis and the age difference between the boy and the offender.
16. The judge agreed with the categorisation of both offences. He took the starting point of 6 years and factored in solely the previous convictions as an aggravating feature. He then reduced the sentence because this was an attempt, thereby returning to the starting point of 6 years. He found the mitigation carried little weight. The judge treated the plea and trial preparation hearing as the first reasonable opportunity for entering pleas of guilty and gave the offender full credit for the pleas. He concluded an overall sentence of 4 years was commensurate with the seriousness of both offences. The judge was also persuaded the offender was dangerous: hence the extended sentence.

Reference

17. Her Majesty's Attorney General took no issue with the judge's categorisation of the offences, the finding of dangerousness and the length of the extension period. Represented by Mr Evans, he sought leave to refer the sentence imposed on count 2 as unduly lenient in the light of the seriousness of the overall offending, and in particular the following aggravating features:

(i) 21. there were two victims, both of whom were threatened and injured with a knife;

(ii) 22. the offences occurred in the home of one of the victims and in the temporary bedroom of the other;

(iii) 23. the offender was intoxicated through alcohol and drugs;

(iv) 24. the offender's young children were present at the address;

(v) 25. the offender has a violent history and has previously committed offences in breach of licence;

(vi) 26. on count 2 the offender intended to cause more serious harm than he actually caused. Only Lewis's efforts to defend himself prevented him from sustaining more injuries.

18. Mr Mochrie conceded the aggravating features as set out. However, he did not accept that the judge was wrong to reduce the sentence to reflect the fact that the charge was an attempt rather than causing grievous bodily harm.
19. Both he and Mr Evans accepted that there was one mitigating factor, namely that the offender had the benefit of his pleas of guilty.

Conclusion

20. The question for this court is whether the custodial element of the sentence adequately reflects the seriousness of the overall offending. In our judgment, it does not. We proceed on the basis the categorisation of the offences was correct and we shall factor into the sentence on count 2 the assault on Ms Baikie (count 1), as the judge purported to do. However, the assault upon Ms Baikie was with a knife and in a domestic setting; proper recognition should have been made of those facts. We have no doubt the cumulative effect of the offending against Ms Baikie (count 1) and the aggravating features (on both counts) justified a significant upward adjustment from the starting point of 6 years to the top of the range and beyond.
21. We note that the only aggravating feature to which the judge referred in his sentencing remarks was the offender's previous record. There were many others.
22. Furthermore, with respect to the sentencing judge, we simply do not understand his decision to make a downward adjustment to reflect the fact that count 2 was charged as an attempt to cause grievous bodily harm with intent. This could and should have been charged as wounding with intent to cause grievous bodily harm. Had it been the categorisation and starting point would have been the same. In any event, had the offender succeeded in his attempt to cause really serious harm, on these facts, the offence could have become a category 1 offence.
23. This offender, knowing his predisposition to violence when drunk, went home in an angry and violent mood. He grabbed a knife; he attacked his then partner with it and then deliberately went upstairs to attack a 16-year-old boy, whose only offence seems to have been to spend the weekend with his mother. The offender repeatedly slashed at the boy's face intending to cause him really serious harm. He could so easily have done so. As it was he caused significant injuries to his hand and eye. This was domestic violence of a serious kind. The only mitigation was his guilty plea.
24. The shortest sentence that could have been imposed on these facts was one of 10 ½ years, from which we shall deduct the full one-third credit for his pleas. Accordingly, we find that the sentence was unduly lenient. We give leave to refer. The sentence on count 2 will be quashed. A sentence of 7 years will be imposed with an extension period of 4 years.
25. In conclusion, we observe that it is essential, if judges are to receive all the help they need, that charges are sensibly drawn and properly reflect the offending. Charges of wounding with intent (count 2) and wounding (count 1) would have made the judge's task considerably more straightforward. Furthermore, it was incumbent upon prosecuting counsel to list the aggravating features in full.