Attorney General's Reference No 26 of 2004

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.

The offender is 35 years of age, having been born in April 1969. In January 2004 he was convicted by the jury at Preston Crown Court of an offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 9th February he was sentenced by His Honour Judge Badley, after pre-sentence reports had been prepared, to 3 years and 9 months' imprisonment.

In brief outline the offender and a friend, who was an older man, went to the home of the victim a Mr Mohammed Afzal Khan. The offender alleged that Mr Khan owed him money. There was an argument. The offender left. He returned soon afterwards carrying a knife with a 7 inch blade concealed in his jacket. The argument resumed. Without warning, the offender stabbed the victim in the neck. When he tried to escape, the offender stabbed him from behind in the head.

A substantial amount of blood was lost. There was permanent scaring.

In a little more detail, the offender and victim had known each other and had, at one stage, been good friends. But, in recent times, the offender claimed, contrary to the victim's denial, that the victim owed him money. This led to a fallout between the two of them. The incident which gave rise to this indictment took place at about 9.30 on the evening of 25th April 2003.

Then, the offender and the older man went to confront the victim in the victim's home about the money. After an argument the visitors left. They returned two or three minutes later and the victim invited them into the house. Again, the offender asked for money, to which the reply from the victim was that he had no money and he was unemployed. The victim was fearful that the offender had a weapon and, in consequence, he picked up a walking stick to defend himself. The older man, who had accompanied the offender, took the walking stick from him saying that they had not come for a fight. Thereupon, the offender took out a knife, which we have earlier described, and struck the first blow to the left side of the victim's neck. The victim pushed the offender away and tried to run out of the house. The offender pursued him and, from behind, struck him in the head a second time. Then, for good measure, the offender hit the victim on the head and body with the walking stick, several times, with such force to cause it to break.

The wounds, as we have said, bled profusely and the victim was taken by a neighbour to hospital. In the meantime, the offender and his accomplice made off in a motorcar. The knife was never recovered but the walking stick was found in a broken and bloodstained condition in the victim's house.

The offender was arrested a few days later. In interview, he agreed he had been at the victim's flat asking for money but claimed that it was the victim who had attacked him with the walking stick. He denied having a knife.

At trial, he claimed that some other person must have attacked the complainant after he, the offender, had left him in an undamaged condition.

The injuries were a 3 inch wound to the neck requiring eight stitches, and a 4 inch wound to the back of the head, requiring 15 stitches. The complainant was in hospital for two days. In the victim impact statement which he made, he described his fear in his own home, his physical scarring, his nightmares, at that time continuing and requiring the use of sleeping pills, and severe headaches especially in cold weather. He also had experienced some memory loss and pain in the neck and shoulder. He had to give up the college course which he was attending and, at the time of the statement, felt that his future, in consequence, had been ruined.

On behalf of the Attorney-General Miss Cheema draws attention to a number of what she submits are aggravating features. First, the use of a knife. Secondly the attack on an unarmed man in his own home. Thirdly, the premeditation implicit in the history which we have rehearsed. Fourthly, the ferocious and sustained nature of the attack involving stab wounds to particularly vulnerable parts of the body, which might have been fatal. Fifthly, the attack was persisted in despite the victim's attempt to escape. Sixthly, the victim had been disarmed prior to the attack. Seventhly, there was no sign of remorse exhibited by the offender and eighthly, knife offences are, sadly, very prevalent.

Miss Cheema draws attention to the mitigating features to be found in the offender's previous good character; the fact that, happily, there was no serious permanent physical disability; the fact that the incident was an isolated one; the possibility that the offender, because of language difficulties and some history of depression, may experience unusual problems in prison; finally, the low risk of re-offending, as assessed in the pre-sentence report and the fact that the offender is father of five children, one of whom is unwell.

Miss Cheema drew attention to four authorities, Attorney-General's Reference No 4 of 1998 (R v Ward) [1998] 2 Cr App R(S) 388, Attorney-General's Reference Nos 59, 60 and 63 of 1998 [1999] 2 Cr App R(S) 128, Attorney-General's Reference No 52 of 2001 (R v Lamoon) 2001 EWCA Crim 1906 and Attorney-General's Reference No 18 of 2002 (R v Hughes) [2003] Cr App R(S) 35. She submits that the sentence of 3 years and 9 months passed by the learned judge was unduly lenient, placing it at the bottom of the bracket of 3 to 8 years, indicated in the last of those authorities as being appropriate in relation to an offence of this kind. Such a placement, Miss Cheema submits, was unjustified having regard to the absence of any plea of guilty and the presence of the aggravating features to which she draws attention.

On behalf of the offender, Mr Dyer accepts that the sentence passed was a lenient one and that the bracket for offences of this kind is indeed between 3 and 8 years. He submits that the sentence was not unduly lenient. He emphasises that the trial judge has a discretion in relation to sentencing and is generally best placed to assess the seriousness of a particular offence. Mr Dyer stresses the good character of the offender, who has been in this country for some 10 years. He submits that it is comparatively rare for offences of this kind to be committed by persons of good character. We have some difficulty in accepting that part of Mr Dyer's submission: unhappily, even such serious offences are, not infrequently, committed by people of good character, although it is right to say that, in the four authorities to which Miss Cheema drew attention, and although not all of the offenders had previous convictions for violence.

Mr Dyer accepts that this was a serious offence, having regard to the site of the blows. He points out that there was no long-term physical disability, although he concedes, having regard to the site of the blow, that there might have been. He also points out that the scarring is by no means as severe as in some cases, one of the wounds having been inflicted in the hairline.

Mr Dyer also invites the court, if it takes the view that this sentence was unduly lenient, to take into account the element of double jeopardy involved in the second sentencing process which is a feature of all Attorney-General's References. To all of these factors we have regard.

In our judgment, this was a very serious case of wounding with intent, having regard to where it took place, namely the victim's home, the degree of premeditation which involved going to fetch a weapon, the disarming of the victim before the attack took place and the repeated attack on vulnerable parts of the body.

Having regard to those matters in particular, but also taking into account the mitigating factors to which reference has already been made, we would have expected, following a trial, a sentence in the court below of at least 7 years for this offence. Taking into account double jeopardy, we quash the sentence of 3 years and 9 months passed by the learned judge and substitute for it a sentence of 6 years' imprisonment.