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Osman, R v

[2008] EWCA Crim 667

No: 200705462/A2
Neutral Citation Number: [2008] EWCA Crim 667
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Wednesday, 27th February 2008

B e f o r e:

SIR IGOR JUDGE

(PRESIDENT OF THE QUEEN'S BENCH DIVISION)

MR JUSTICE FORBES

MR JUSTICE MACKAY

R E G I N A

v

AHMED OSMAN

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Mr M Fox appeared on behalf of the Appellant

Mr M McDonagh appeared on behalf of the Crown

J U D G M E N T

1.

MR JUSTICE FORBES: On 4th September 2007, on rearraignment at the Inner London Crown Court, this appellant pleaded guilty to wounding with intent, contrary to section 18 of the Offences Against the Persons Act 1861. On 2nd October 2007 he was sentenced to five-and-a-half years' detention in a young offender institution, with a direction that 164 days spent on remand in custody should count towards that sentence. He now appeals against sentence with the leave of the Full Court.

2.

The brief facts are these. On the afternoon of 18th April 2007 the complainant, Edwardo Luiz, was on a bus with two friends travelling in the direction of Camden. One of Mr Luiz's friends decided that he wished to visit his old school. Accordingly they all got off the bus near to the school. They encountered the appellant, who spoke them. It appears that there was then some form of verbal altercation between them. The appellant later claimed that he was slapped by one or two of Mr Luiz's group before Mr Luiz and his friends went into the school, where Mr Luiz's friend talked to some of his old teachers.

3.

A few minutes later Mr Luiz went out into the school car park to get some fresh air. Almost immediately he saw the appellant walking in the school grounds. The appellant approached Mr Luiz and pulled a kitchen knife out of the front of his trousers. Mr Luiz tried to escape by backing away from the appellant but stumbled and fell on his back. As Mr Luiz lay on the ground the appellant stabbed him once in the left leg. The knife then fell to the ground and the appellant cut his own hand on it. Mr Luiz managed to get to his feet and run into the school. When he looked out of the window he saw the appellant speaking to a community support officer. Apparently, the appellant told the community support officer that a boy had been cut and had gone into the school. The officer therefore went into the school to investigate the matter and this enabled the appellant to make good his escape.

4.

Mr Luiz was taken to hospital. Whilst he was waiting there for treatment the appellant was brought in for treatment to his bleeding hand. Mr Luiz then identified him as his assailant. Mr Luiz was treated for a 2 centimetre half inch stab wound to his left thigh. The appellant was subsequently arrested. When interviewed he denied any involvement in any stabbing of Mr Luiz.

5.

When passing sentence the judge accepted that the appellant might have been provoked by being slapped as he claimed. The judge said that as a result the appellant had lost his self-control and had gone and armed himself with a substantial kitchen knife. He had then waylaid Mr Luiz as he left the school and had stabbed him in the leg. The judge rightly observed that the courts have to make clear that those who arm themselves with a potentially lethal weapon and then go on to use it would be dealt with severely. The judge correctly concluded that the provocation to which the appellant had been subjected paled into insignificance compared with the appellant's conduct in inflicting a deliberate stab wound, albeit not one of the worst kind.

6.

Having taken everything into account the judge came to the conclusion that the appellant was not a dangerous offender for the purposes of section 228 of the Criminal Justice Act 2003. Accordingly he proceeded to pass the determinate sentence to which we have earlier referred.

7.

The appellant is now aged 18, having been born on 8th August 1989. He was 17 at the date of the offence. On 5th October 2006 at the Thames Juvenile Court the appellant pleaded guilty to offences of offering to supply and the possession of cannabis. He was made the subject of a referral order for 6 months. He has also received cautions for criminal damage and the possession of cannabis. It also appears that he was made the subject of an interim anti-social behaviour order on 13th January 2007.

8.

The pre-sentence report, dated 28th September 2007, made no specific recommendation. However, the probation officer assessed the appellant as presenting a medium risk of reoffending and a high risk of serious harm to the public. According to the probation officer the appellant's breaches of the anti-social behaviour order clearly demonstrated his total disregard for court orders. The probation officer concluded his report by expressing the view that the appellant tended to minimise his responsibility for the offence in question and that he showed little remorse.

9.

On behalf of the appellant, Mr Fox submitted that a sentence of five-and-a-half years' detention was manifestly excessive in all the circumstances, having regard to the appellant's age, his non-violent previous record, his plea of guilty (albeit a late plea) and the relatively non-serious nature of the actual wound itself. As we have already indicated, the stabbing involved a single half inch deep wound to the left leg. It was treated with three sutures and an anti-tetanus injection. Apparently it left Mr Luiz ambulatory on the day of the attack and has since healed in full.

10.

In support of his submissions Mr Fox referred to the decision of this court in R v Samuel-Furness [2005] 2 Cr App R(S) 84. In that case the victim was stabbed in the torso and sustained serious damage to a kidney (which he actually lost) and to his liver. It was held that, even with a late plea of guilty, the appropriate sentence was one of 7 years. Mr Fox also referred to Attorney-General's Reference No 4 of 1998 2 Cr App R(S) 388, in which, following a plea of guilty, a sentence of 7 - 8 years was stated to be appropriate for a pub fight stabbing, as a result of which the victim lost his spleen. Mr Fox made the point that there is a dearth of authorities dealing with factual circumstances such as the present case and pointed out that the two cases to which he had referred involved adults who had been affected by drink.

11.

When granting leave in this case, the Full Court expressed the view that there does appear to be a shortage of recent authority on the level of sentence for offences of wounding with intent that involve stabbings inflicted by young men who have armed themselves with knives. As the Full Court observed, this is a form of offending behaviour about which there is an increasing level of public concern because not infrequently the tragic consequence of such a stabbing is the loss of life. In our view, the very serious nature of this form of offending behaviour cannot be exaggerated. The premeditated carrying and use of a knife to inflict an intentional stab wound necessarily involves the commission of a very serious offence and all too often one of the utmost gravity. The need for the courts to take account of legitimate public concern and to deter such offending behaviour, by the imposition of condign and/or deterrent sentences is all too obvious. Such an approach to this type of criminal behaviour is reflected in the Sentencing Guideline's Council's recently published Definitive Guideline in respect of assault and other offences against the person. When dealing with wounding with intent to do grievous bodily harm, contrary to section 18 of the 1861 Act, a guideline starting point of 8 years' custody and a sentencing range of 7 to 10 years' custody is recommended by the Sentencing Guidelines Council in cases involving "premeditated wounding or grievous bodily harm, involving the use of a weapon, acquired prior to the offence and carried to the scene with the specific intent to injure the victim but not resulting in a life threatening injury or particularly grave injury."

12.

However, it is be noted that the suggested starting point for the sentencing range in that guideline is based upon a first- time adult offender convicted after a trial. In this case the appellant was aged 17 at the time of the offence and had the benefit of a plea of guilty, albeit a late one. Furthermore, although the offence was premeditated and involved the use of a knife acquired for that purpose, the single stab wound was inflicted to the leg, rather than to the abdomen and was relatively non-serious in the manner described earlier in our judgment. In addition, the judge accepted that the appellant had been subjected to a certain amount of provocation. In our judgment the sentence passed by the judge might well have been appropriate in the case of an adult offender, but was too long for a 17-year-old, who had pleaded guilty and who did not have a previous record for violence or weapons. For that reason, we have come to the conclusion that the sentence imposed was excessive and manifestly so. In our judgment, the appropriate sentence would have been one of 4 years' detention in a young offender institution. Accordingly we quash the sentence passed and substitute for it one of 4 years' detention. For those reasons and to that extent this appeal against sentence is allowed.

Osman, R v

[2008] EWCA Crim 667

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