C, R. v

On 17 January 2006, at Doncaster Crown Court, the appellant pleaded guilty to kidnapping and assault occasioning actual bodily harm, having earlier pleaded not guilty to those offences. He was remanded in custody for sentence. On 27 March 2006, for the offence of assault occasioning actual bodily harm he was sentenced to Detention for Public Protection for 261 days as a minimum term pursuant to section 226 of the Criminal Justice Act 2003. For the kidnapping he was sentenced to 18 months' detention concurrent. The judge also ordered that twelve days spent in custody on remand should count towards his sentence. The appellant now appeals against that sentence by leave of the single judge who, in giving leave, stated:

There were two co-defendants, a relative (TC) then aged 34, and the driver of the car, HF, who was associated with TC. HF pleaded guilty to assisting an offender and was sentenced to a community sentence. TC pleaded guilty to both the kidnapping and the assault occasioning actual bodily harm. She was sentenced to 18 months' imprisonment.

The parties knew each other. In the early hours of the morning of 9 August 2005, at about 2am, the complainant, Mandy Vickers, aged 19, was in the Hesthorpe district of Doncaster, walking along the road. She was accosted by TC who abused her. The complainant ran off. She then heard this appellant call her name. She stopped to talk to him. She noticed that he was holding a rowing paddle. A few minutes later a car drove up and TC approached. She punched Mandy Vickers in the face, punched her another three or four times and said, "You're going in the boot". The appellant joined in the threat. In the end the complainant was not put into the boot but into the back seat of the car next to the appellant. While driving along the car stopped and the appellant and TC changed places. TC clearly believed that the complainant had stolen money from a relative of hers. She demanded money from her and continued to punch her. Eventually they arrived at a caravan site where the complainant was staying because she said that there was money there which she could get for them. Before they reached the caravan the car stopped in an area of wasteland. Mandy Vickers was dragged from the car and assaulted by TC and by the appellant, who both used their fists and feet. She was told that she was going to get the beating of her life. She was pulled further into the waste area and the beating continued. At one stage she was hit by the appellant with the rowing paddle. He threatened to smash a piece of concrete over her head. After that violence she was taken back to the car and they drove to the caravan. The complainant went inside to obtain money. The others followed. Further violence was used in the caravan. No money was forthcoming. The claimant was allowed to go into her bedroom and clean herself up. There she found a mobile telephone and she dialled 999. The offenders left the caravan, smashing its windows as they did so. They threatened to return with shooters and knives. They said, "We'll blow up your caravan with you in it if you report this".

The complainant was taken to hospital. Her injuries were fortunately not as severe as might have been anticipated. She had a one inch split to the bridge of her nose, two swollen eyes, bruised ears and bruises to her forehead.

At the time the appellant was 14 years old. He had previous findings of guilt for assault and assault occasioning actual bodily harm.

There were a large number of reports before the court. The judge dealt with those reports in his sentencing remarks. He had before him two pre-sentence reports from two separate probation officers, each with an addendum. He also had a psychological report and a psychiatric report. The judge reminded himself of the statutory framework of the Criminal Justice Act 2003. He quoted a number of passages from the reports before him. It is clear that both probation officers were concerned at the risk that the appellant posed not only to himself but also to members of the public. The second of the two probation officers, Karen Jackson, of the Doncaster Youth Offending Service, identified the appellant as posing a high risk of serious harm. She said that action should be taken in the near future and the case would need additional supervision and monitoring. Another probation officer, Jackie Talbot, stated:

Subsequent to the dates of those reports, there was a psychological report dated 2 February 2006 prepared by Mr Prebble, a Chartered Psychologist with a Postgraduate Diploma in Education Law, a Postgraduate Certificate of Education, and a Diploma in Educational Psychology. In his initial report Mr Prebble took the view that the appellant was a major risk both to himself and to others unless some sort of supervision or therapy could be implemented. He filed an addendum to his report a day or two before the sentencing hearing. He then stated that the appellant had made good progress during the initial stages of a referral order and especially when placed in local accommodation. He spoke of the undesirability of an indeterminate sentence, which, in his judgment, was likely to make the appellant a hardened criminal, which would not lead to any satisfactory level of re-integration in the wider community. He said:

Finally, before the sentencing judge there was a report from a forensic psychiatrist, Dr Gwilym Hayes, dated 23 March 2006. He noted that the probation service considered that the appellant posed a high risk of committing further offences and a higher risk of causing serious harm. He said this at paragraph 13.5 of his report:

Those were all the reports that were before the trial judge. He was presented with a case of considerable complexity. He properly directed himself in relation to the different sections of the 2003 Act. He appreciated that, whereas kidnapping was a "serious" specified offence under section 15 of the Act, assault occasioning actual bodily harm is a "specified" offence. He was, therefore, not entitled to pass a sentence for public protection in respect of the assault occasioning actual bodily harm which, on the facts of this case, was in some ways the more serious of the two offences, although the kidnapping was also a very serious offence. He came to the conclusion that the appellant was both a danger to himself and, far more significantly, a danger to the public at large.

It is with that background that we turn to consider some of the matters stated by the Vice President in the well-known case of R v Lang and Others [2005] EWCA Crim 2864. In paragraph 14 the Vice President stated:

In his sentencing remarks the judge referred to Lang. It is not clear whether he had D in front of him or not. D sets out no new principle, but the facts related to a female aged 13 at the time of committing serious offences. This appellant was 14 at the time of these offences.

Since the trial this court has received and read a two-and-a-half page report by Mr Peter Wilkinson, a seconded probation officer at Her Majesty's Young Offender Institution Castington, where this appellant is serving his sentence. He sets out that the appellant was a difficult young man who had four demerits for minor matters during the early days of his arrival at that institution. Mr Wilkinson writes:

This court is faced with a young boy who behaved disgracefully on this occasion, had committed previous incidents of violence and was assessed by experienced probation officers as being dangerous to himself and others. When other professionals came in they seem to have watered down the conclusions of the probation officers. There are, in our view, sufficient signs to indicate that the appellant is not only capable of improvement but is improving. This is very much a borderline case which turns on its own facts.

In the view of this court justice can be achieved by quashing the existing sentence and replacing it with an extended sentence. It is interesting to notice that at the end of his sentencing remarks the judge clearly was sufficiently concerned to set out what his extended sentence would have been if he had not passed a different form of sentence. Our conclusion is very similar to his; but is a slightly longer extended sentence. In the view of this court, the proper way to deal with this difficult matter is to quash the existing sentences and to impose an extended sentence of five years and six months, with a custodial term of 18 months and a four year extension period. That will be for the offence of kidnapping, and there will be a concurrent sentence of 18 months for the assault occasioning actual bodily harm.

LORD JUSTICE KEENE: The extended sentence is passed under section 228 of the 2003 Act.