Onyeagucha, R. v

MR JUSTICE PICKEN: The appellant, Nike Onyeagucha, appeals with leave of the single judge against the sentence of detention for life, with a minimum term of 4 years and 99 days, which he received at Woolwich Crown Court before Mr Recorder Baumgartner on 11 November 2017, in respect of an offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. The appellant was convicted of that offence at a trial which ended on 4 October 2017 and which took place before the same court. He was convicted at the same time of a further offence of having an article with a blade, namely a knife and received a concurrent 4-year term of detention in respect of that offence. As will appear, at the heart of the appeal is a complaint that the Recorder ought not to have assessed the appellant as "dangerous" for the purposes of the Criminal Justice Act 2003 and ought not, in any event, to have imposed a life sentence as opposed to a determinate sentence or an extended sentence of imprisonment. It is also suggested that the Recorder approached the matter of sentence by taking into account aggravating features which were not present and by failing to afford a sufficient reduction to take account of the appellant's age, both at the time that the offences were committed and at the time he came to be sentenced. This is the second occasion that the matter has come before the Court of Appeal since the present hearing follows an earlier hearing before Sharp LJ, Andrews J and the Recorder of Leeds (His Honour Judge Peter Collier QC) which took place on 1 May 2018. On that occasion the appeal was adjourned so as to enable the probation service to prepare a report dealing specifically with the issue of dangerousness. We now have the benefit of such a report and will refer to its contents later.

The circumstances in which the offences were committed can be relatively briefly described. In the early evening of 18 December 2016 the complainant, Mr Zambellis, visited the home of his friend, Mr Isaacs, who lived in a third floor flat in South London. There was a knock on the door. Mr Zambellis opened the door and saw two boys, the co-defendants, Nathan Boyce and Tony Nguyen. Boyce and Nguyen asked if Mr Isaacs was in. They came in but Mr Isaacs asked them to leave. Boyce said he wanted to go into Mr Isaacs' bedroom. Mr Isaacs had let the boys into his flat before but they had become something of a nuisance. Taking their time the two co-defendants left. About 10 minutes later they returned and knocked on the door again. This time the appellant was with them. Mr Isaacs opened the door and made it clear that they were not welcome. He called Mr Zambellis to the door. Mr Zambellis told the three of them to leave. The appellant and Boyce were smoking cannabis. As they left the flat, just outside the front door Boyce punched Mr Zambellis twice in the face. Mr Zambellis hit him back, punching him twice. Nguyen then punched Mr Zambellis from behind. Mr Zambellis held onto Boyce by the collar and tried to fend off Nguyen. Whilst he was grappling with Nguyen Mr Zambellis felt a sharp stab of pain on the top of his right shoulder. He did not realise that the appellant had stabbed him. The appellant stabbed him at least five times. Mr Zambellis was still grappling with Boyce and tried to turn around to bring Boyce between him and the appellant who was wielding the knife. The three defendants were all on top of Mr Zambellis and he was still being punched and kicked. Eventually he let go of Boyce and Boyce and Nguyen fled. At that point Mr Zambellis saw the appellant holding a kitchen knife with a 10 to 12-inch blade. The appellant turned round and fled.

Mr Zambellis was on his hands and knees bleeding. He managed to get inside the flat and call the emergency services. Paramedics noticed that he had five stab wounds to his back and one to his left flank. He also had scratches to his face. The injuries were so serious that an air ambulance was called.

Mr Zambellis was treated for his injuries. A chest X-ray and CT scan showed a collapsed lung with bleeding around the lung, suggesting at least one stab wound had punctured the chest cavity. None of the wounds proved immediately life threatening. Mr Zambellis was admitted to the trauma ward and was discharged on 21 December 2016.

Boyce and Nguyen were later apprehended but the appellant remained at large. Boyce and Nguyen were each convicted after trial and sentenced on 7 June 2017. Boyce received a sentence of 12 months' imprisonment suspended for 12 months in respect of an offence of affray, after being acquitted by the jury, on the judge's directions, of wounding with intent and wounding. Whilst Nguyen was sentenced to a youth rehabilitation order, having been convicted of an offence of wounding but acquitted of wounding with intent.

The appellant was arrested on 30 May 2017, having been arrested for an unrelated allegation of affray.

At trial, he denied the offences. He admitted being present at the repeated stabbing of Mr Zambellis but lied to the police and denied having or using a knife. He claimed that Mr Zambellis was stabbed by a fourth person. He claimed Mr Zambellis attacked Boyce by punching him and trying to flip him over the balcony. He said the fourth person appeared, produced a knife and repeated stabbed Mr Zambellis. That account was rejected by the jury hence the appellant having to be sentenced for the section 18 offence.

At the time that the offence was committed the appellant was aged 17. He was 18 when he was sentenced and is now 19. He had two previous convictions: in March 2015 he received a 12-month referral order for two offences of possession of a Class A drug with intent to supply and in December of the same year he received a conditional discharge for simple possession of a Class B drug.

In the pre-sentence report which was prepared for the purposes of the sentencing hearing, it was noted that the appellant continued to deny the offences but that he showed some victim empathy having himself been the victim of a stabbing in the past. He regretted being in the wrong place at the wrong time but denied responsibility for wounding the victim.

It was difficult, the report writer explained, to make an accurate assessment of his motivation due to his denial of the offences. His life-style and associations were related to his risks of re-offending and risks of harm. He had developed a pattern of previous offending similar to those who had entrenched anti-social behaviours. The report writer described the appellant denying being part of a gang, but the writer observed that this was his third conviction and his first involving violence and weapons. He was assessed as posing a medium risk of re-conviction and a high risk of serious harm to members of the public. The risk was not imminent, the report's writer considered, but remained because of his peer associates and life-style choices including drug misuse. The report went on to state that given his gang associations the appellant was assessed as posing a medium risk of harm to known associates.

In his lengthy sentencing remarks the Recorder described the impact of the offence on Mr Zambellis. He explained in particular, that he no longer felt safe being out late or travelling home late from work. That he and his family had moved away from the area. As of October 2017 Mr Zambellis had not been able to return to paid work and he was suffering from depression, the Recorder stated. He went on to identify the factual basis on which he was approaching the matter of sentence. We will return to this shortly when dealing with the submission made by Mr Unwin, on the appellant's behalf, that the evidence did not, in certain respects, justify the Recorder's approach in that respect.

The Recorder then explained that it was common ground before him that the section 18 offence came within category 1 under the Assault Definitive Guideline on the basis it involved both greater harm and higher culpability. Again, as will appear, although there is indeed no issue about category 1 being the appropriate categorisation Mr Unwin nonetheless criticises certain of the reasons given by the Recorder for treating the case as a category 1 case. We will therefore come back to this topic. However, the Recorder summarised the position as follows:

The Recorder then identified aggravating features as being:

The Recorder next went on to address the dangerousness issue which he did by reference to a number of authorities including Attorney-General Reference No 27 of 2013 (R v Burinskas) [2014] EWCA Crim 334. Again, this is a matter to which we shall return when addressing Mr Unwin's submissions but, suffice it to say, that the Recorder's conclusion was that the appropriate sentence in this case was one of life imprisonment. The Recorder considered in particular that a determinate sentence would not adequately protect the public, because the appellant would be released without a finding that he was no longer dangerous. He went on to explain that, whilst there had to be a reduction for the appellant's youth, it would not be just for the reduction to be as much as half or a third since, as the Recorder put it: "There can be no sensible submission" that the appellant "effected the offences because of his youth of immaturity". Rather in the Recorder's view the appellant "chose to be a member of this group", "chose to attend the address", "chose to arrive armed", "chose to embark on a course of serious violence" and "chose to flee the scene". This was not a case, the Recorder explained, where the appellant's age or immaturity forced him "into a course of conduct such that a young person, cornered or provoked might feel they had no option other than to lash out". Instead the Recorder observed that the appellant "specifically sought out this confrontation". The Recorder concluded by saying that had a life sentence not been appropriate a sentence of 10 years' detention in a young offender institution would have been imposed. Taking into account the seriousness of the offence and the mitigating factors and making an allowance of 10% for his youth he would have spent one-half of that time in custody after deducting 167 days, regarded by the Recorder as the time that the appellant had spent in custody, and so on that basis the Recorder arrived at a minimum term of 4 years and 99 days.

A number of points are raised in support of the appeal but, in summary, Mr Unwin submits that the sentence was wrong in principle and manifestly excessive in that the Recorder: (i) found aggravating factors which were not justified in the available evidence;

(ii) made an inappropriate finding of dangerousness;

(iii) was wrong to conclude that the seriousness of the offence justified a life sentence;

(iv) should, in the alternative, have exercised his discretion to impose a determinate sentence or, if not, an extended sentenced;

(v) made insufficient reduction in relation to the custodial term to take account of the appellant's age.

We propose to deal with these matters in turn. As to the first, although Mr Unwin accepts on the appellant's behalf that the section 18 offence was a higher culpability offence for the purposes of the Assault Definitive Guideline given the use of the kitchen knife, he submits that the Recorder ought not to have approached the matter of sentence on the basis that they were the aggravating factors which he identified. Mr Unwin highlights in this connection the Recorder's reference to the appellant's attendance at Mr Isaacs' flat with his co-defendants as amounting to "unlawful gang-like behaviour involving as it did the smoking of drugs".

We agree with Mr Unwin that the Recorder's reference to "gang-like behaviour" does not sit particularly well with the Recorder's repeated references including, as it happens immediately after the reference to "gang-like behaviour" to his making no finding as to whether the appellant, Boyce and Nguyen were members of a gang. It would in the circumstances have been better had the Recorder not referred to "gang-like behaviour", but it needs to be borne in mind that the specific context in which the reference was made was the Recorder making the point that there was "a connection of some sorts" between the appellant and the co-defendants and that it was not clear to him what the purpose of the visit to Mr Isaacs' flat was.

We are not satisfied, in short, that the Recorder relied upon any gang-like behaviour as an aggravating factor. Indeed, later on in his sentencing remarks, when identifying the identifying factors which he did rely upon, it is significant that the Recorder did not identify this as one of those factors.

Mr Unwin also criticises the Recorder for approaching the matter of sentence on the basis there was pre-planning. Specifically the Recorder said this:

The Recorder then said this when dealing with why, in his assessment, the case involved higher culpability:

Mr Unwin submits that there was no proper basis on which to infer that the appellant was summoned to the scene as some type of enforcer. He adds that such a finding is not consistent indeed with how the case was put by the prosecution at trial.

It seems to us however that the Recorder was well placed to form an assessment as to whether there was premeditation for the purposes of the Assault Definitive Guideline. He had, after all, presided over the appellant's trial. Whether or not Boyce and Nguyen knew the appellant had a knife, the Recorder was entitled to take the view that there was some element of summoning and so premeditation between the first and second visits to Mr Isaacs' flat that night.

Mr Unwin then submits that the Recorder impermissibly regarded the appellant as an habitual carrier of a knife. There is nothing in this submission however because the Recorder actually did no such thing. On the contrary, in dealing with culpability the Recorder in fact stated as follows:

The Recorder later said this:

The Recorder therefore made it clear that he was not saying that the appellant habitually carried a knife but that that night the appellant was carrying a knife when he attended the flat. The Recorder, in our assessment, was entitled to treat this as being indicative of premeditation.

Mr Unwin submits nonetheless, before us today, that the Recorder was unjustified in deciding that the knife had been brought to the scene by the appellant, and relies for these purposes on handwritten notes prepared by Mr Zambellis in the aftermath of that night's events in which Mr Zambellis describes seeing the appellant with a kitchen knife, which he considered was obtained by the appellant probably, as Mr Zambellis puts it, as the appellant pushed past Mr Isaacs to enter the kitchen in Mr Isaacs' flat. Mr Unwin therefore submits that the Recorder ought not to have reached the conclusion which he did concerning the appellant bringing the knife to the scene but should instead have approached the matter of sentence on the basis that the appellant did not attend the scene with a knife but instead obtained the knife from Mr Isaacs' kitchen.

As we have indicated, we are reluctant to interfere with the Recorder's assessment of the facts, the Recorder having, unlike us, presided over the trial where the evidence was heard. But even if Mr Unwin is right in what he submits before us today, we consider that there was anyway premeditation involved in the appellant going into the kitchen, arming himself and coming back out to stab Mr Zambellis. It follows that the point today raised by Mr Unwin is not, in our view, a good one.

Mr Unwin goes on to criticise the Recorder for describing the appellant as having played a "leading role delivering serious injuries reflecting the intention of the group". Mr Unwin submits that this is inconsistent with the jury's verdicts in relation to Boyce and Nguyen - we should say the jury's verdict in the other trial that took place prior to the trial of the appellant.

The Recorder did this again, when setting out the factors which caused him to conclude that this was a higher culpability case. Earlier he had made the point that as he was "the only person with the knife" the Recorder could not accept the submission that the appellant did not play a leading role. We are clear that, whatever the position in relation to Boyce and Nguyen, the appellant did obviously play a leading role for the reason given by the Recorder.

It is next said that the Recorder ought not to have treated Mr Zambellis as being vulnerable for the purposes of the assessment of the harm under the Assault Definitive

We agree with Mr Unwin that this does not mean that Mr Zambellis should be regarded as being a "particularly vulnerable because of personal circumstances", which is how it is put in the Assault Definitive Guideline. Nonetheless, since it was accepted and is still accepted by Mr Unwin on the appellant's behalf that this is a category 1 case, we do not consider that the Recorder's mischaracterisation is material. In any event, we are satisfied that the Recorder was entitled to regard the fact that Mr Zambellis was not facing the appellant when he was stabbed as an aggravating feature of the offence.

Mr Unwin goes on to submit that the Recorder was wrong to have described the attack as entailing "wounds ... delivered with rapidity and without mercy" on the basis that the finding, as Mr Unwin puts it, goes too far, since the Recorder failed to take into account the fact that Mr Isaacs had not each appreciated, when Mr Zambellis came back into the flat after being stabbed, that he had been stabbed. The suggestion made is that the extent of the injuries might not have been obvious to the appellant either. We reject this submission: the appellant would obviously have known what he was doing.

Lastly, Mr Unwin submits that the Recorder ought not to have relied upon the community impact of the offence as an aggravating factor having already identified the location and timing of the offence as aggravating factors. Specifically the Recorder said this:

He went on in the next paragraph to say this:

In the circumstances, we reject the suggestion that there was any element of double counting here, since it does not appear on analysis that the Recorder was really saying anything more than that location and timing were aggravating factors which, of course, they were.

In summary therefore, as to the first of the grounds put forward by Mr Unwin, for the reasons which we have given, we do not consider it has been established certainly in any substantial way, that the Recorder's approach was inappropriate or impermissible.

We turn then to the second ground, the issue of dangerousness. As we explained, the Recorder dealt with this matter and relevant provisions of the Criminal Justice Act 2003 by taking into account the guidance given by the Court of Appeal in Burinskas. Specifically in that case, at paragraph 43 Lord Thomas stated as follows:

For the present it is obviously the first step which matters. Mr Unwin suggests that in his reasoning the Recorder proceeded straight to the second step. We agree with Mr Unwin that there was some confusion on the Recorder's part in his sentencing remarks. Since in referring to Burinskas he cited what Lord Thomas had to say at paragraph 22 rather than at paragraph 43. At paragraph 22 this was stated:

It can be seen that is concerned not with the assessment of dangerousness but the question of whether a life sentence should be imposed which presupposes that the sentencing judge has already determined that the offender is dangerous for the purposes of the 2003 Act.

In the present case, the Recorder was quite obviously wrong to do what he did, which was to consider that four-stage test without first considering dangerousness. Specifically what the Recorder did was to refer to the first stage of what he described as the "four-stage" test, by stating that this was met since in his assessment, in view of the features he had earlier identified, including those which we have addressed when dealing with the first ground:

He observed that: "... it is something of a miracle that this was not a murder case."

The Recorder then went on to consider the second step before only then dealing with the third step, concerning the level of danger to the public and explaining that he considered the appellant posed "a high level of danger to the public" for three reasons namely:

The Recorder elaborated on this in the sentencing remarks which he then went on to give.

Later he stated as follows, again in the context of stating that a life sentence was appropriate in the appellant's case:

What the Recorder did not do was to refer, in terms, to section 229 of the 2003 Act. As Mr Unwin reminds us in his grounds, section 229 provides where material as follows:

Nor did the Recorder refer to what Lord Thomas had to say in Burinskas at paragraph 43, specifically concerning the need to decide whether an offender is dangerous before coming on to decide what sentence is in the circumstances appropriate. Although the Recorder was wrong to approach matters in the way that he did, it is nonetheless tolerably clear that he did have regard to that dangerousness issue, if only because in his sentencing remarks he expressly referred to his having to consider dangerousness in accordance with step 5 of the Assault Definitive Guideline and that he concluded that the appellant was dangerous for essentially the reasons which he gave when considering the third stage of the so-called four-stage test identified at paragraph 22 in Burinskas.

We propose therefore to focus on the submissions which Mr Unwin makes regarding the substance of the dangerousness issue rather than to concentrate on the manner in which the Recorder went about his analysis. Mr Unwin submits as regards section 229(2)(a) that although disproportionate the offence was not wholly unprovoked in the sense that it had no comprehensible trigger. Mr Unwin suggests also that the attack was not premeditated nor was it a random or indiscriminate attack on a member of the public with whom there was no prior connection. He also draws attention to the fact that the attack ended once Mr Zambellis fell to his knees.

We are not persuaded by these points. It seems to us that the Recorder was justified in forming the assessment which he did. We have, of course, in this regard already rejected Mr Unwin's submissions on the premeditation issue.

Mr Unwin goes on to submit, by reference to section 229(2)(aa) to (c), that the appellant's convictions do not indicate any propensity to violence or a tendency to carry a weapon. Although it is the case that the appellant has no previous convictions for violence (a point expressly noted by the Recorder), we nonetheless consider that it was appropriate that the Recorder should take the convictions into account in the way that he did and so without placing undue weight on them. The fact that the appellant was previously himself the victim (twice as it happens) of a stabbing does not change matters.

As to the pre-sentence report which was before the Recorder at the time of sentence, Mr Unwin makes the point that the Recorder placed too much reliance on the report writer's reference to the appellant posing a high risk of serious harm to members of the public and highlights how the report also proceeded on the basis of gang association when the Recorder himself made no finding on that topic. He furthermore highlights how the report discussed the possibility of a suspended sentence, which was, Mr Unwin observes, hardly consistent with an assessment that the appellant was regarded by the report author as being dangerous.

We consider that there is merit in these points. It is unfortunate indeed that the report writer had not been asked to consider the dangerousness issue and so did not do so in terms. It is for this reason that on the last occasion that the matter was before this court a further report was ordered. That new report deals with the dangerousness issue inter alia in the following terms:

The report continues in the next paragraph as follows:

Though again, there is reference her to "gang like" behaviour, it should be observed that the reference is made in the context of a description of the two previous incidents when the appellant himself was stabbed rather than the incident involving Mr Zambellis for which the appellant was being sentenced by the Recorder.

Although Mr Unwin urged caution in relation to the report in view of the reference to "gang like" behaviour, we consider that the report writer was nonetheless justified in having regard to those two previous incidents and to make some connection to the likely context in which those incidents took place.

The report then deals with the appellant's motivation to change and the remorse, matters to which Mr Unwin drew our attention during the course of today's hearing before going on over the page to say this:

The conclusion in the next paragraph reads as follows:

The report states at the foot of the same page under the heading "Conclusion":

We are satisfied, having considered this new report with its specific focus on the question of dangerousness and taking account of the circumstances of the offence for which he was being sentenced, that the appellant is indeed appropriately to be regarded as "dangerous".

We ask ourselves whether this assessment should be different in view of the appellant's age. Mr Unwin refers, in this context, to the general guidance given in the Sentencing Children and Young People Overarching Principles Definitive Guideline (we would describe this as "the Children Guideline") at paragraph 1.5 as follows:

Mr Unwin criticises the Recorder for commenting that the appellant's age did not force him to do what he did what might be described as "a culpability issue" and suggests also that the Recorder failed to take age into account when assessing the risk of how he would conduct himself in the future. He highlights in this regard certain observations made by Rose LJ, in R v Lang [2005] EWCA Crim 2864 at paragraph 17(vi) as follows:

We however are unpersuaded by these submissions. We consider that the Recorder did adequately take the appellant's age into account in making the dangerousness assessment, although, as we shall explain, we nonetheless do consider that the Recorder did not reduce the length of the notional determinate sentence sufficiently to reflect the appellant's age. We bear mind also in this respect that the appellant was not that young at the time of the offence but was in fact aged 17. This is an offender therefore who was, at the time of the offence, not far from becoming an adult.

Mr Unwin cites Attorney-General's Reference No 21 of 2016 (Britton-paull) [2016] EWCA Crim 600, in support of the proposition that the court should be slow to find that a youth is dangerous for the purposes of the 2003 Act. He suggests that in that case it was accepted that it was appropriate not to make a finding of dangerousness. This is not authority for so wide ranging a proposition however, since not only is this nowhere stated in the judgment of Davis LJ but the pre-sentence report in that case stated that the

We therefore, for all these reasons, are not persuaded by the second ground of appeal and turn to the third of the grounds raised by Mr Unwin on the appellant's behalf, namely the question of whether the Recorder was wrong to have decided that a life sentence was appropriate in this case.

We propose to deal with this ground in conjunction with the fourth ground, which is to say the submission that the appellant ought to have received a determinate sentence.

We can state our views on this in short order. We consider that the Recorder was wrong to have decided that the appropriate sentence was a life sentence. We consider equally that this is not a case in which an ordinary determinate term of imprisonment would be appropriate. We are not persuaded by Mr Unwin's submissions today that there would be sufficient protection for the public by the passing of a determinate sentence to mean that a determinate sentence as opposed to an extended sentence would be sufficient, given in particular, Mr Unwin submits, the fact that the appellant will apply a greater maturity during the course of the next few years. We consider instead that, as recommended indeed in the report prepared for the purposes of this hearing, the right sentence in the appellant's case is an extended sentence.

We have already described how the Recorder focused in his sentencing remarks on the guidance which was given by Lord Thomas in Burinskas at paragraph 22, concerning the circumstances in which a life sentence would be appropriate. It will be recalled that at (iv) in paragraph 22 it is made clear by Lord Thomas that available alternative sentences need to be considered assuming, that is the first to third stages have been satisfied.

The Recorder dealt with this by simply stating as follows:

It can be seen that the Recorder therefore made no reference to the possibility of imposing an extended sentence on the appellant. We are quite clear that this was an error. Moreover, that an extended sentence would indeed be appropriate in the present case precisely for the reasons stated in the report which has now been prepared, namely

The final ground concerns the appellant's age and the argument that the Recorder failed to make a sufficient reduction to take account of that when arriving at the notional 10-year term of imprisonment, which he then halved, to arrive at the 5 year minimum term which was then reduced to take account of time already spent in custody. The Recorder rejected the suggestion that the appellant should have received a reduction in the order of one-third, deciding instead that the reduction ought to be just 10%, on the basis that the appellant's youth or immaturity did not mean he had no option but to do what he did in committing the offences.

Relevant in this context is what is stated in Sentencing Children Guideline at paragraph 6.1 and 6.2 under the heading "Crossing a significant age threshold between commission of offence and sentence":

Also relevant is what is stated at paragraph 6.46 as follows:

We emphasise in this last page the use of the word "may" and also the reference to not adopting too mechanistic an approach.

We consider that the Recorder nonetheless did adopt too restricted an approach in this case and that a more appropriate reduction would have been in the order of 25%, which we note is the approach that has been adopted in other cases.

In these circumstances, taking as our starting point the 12-year starting point for a category 1 offence within the assault Definitive Guideline, recognising that the sentencing range for such an offence is between 9 and 16 years, we consider that the appropriate sentence in this case was one of 9 years' detention. This is the shortest term we consider is commensurate with the seriousness of the offence.

As for the extension period, that is the extended licence period, again, taking account of everything we have described, our conclusion that this should be 3 years. This is the length of time which we consider is necessary for the purpose of protecting members of the public from serious harm.

It follows that we allow the appeal and substitute for the sentence of detention for life in a

Before we close we should mention one final matter, which is that Mr Unwin submits (for the first time today) that regard should be had to section 11(3) of the Criminal Appeals Act and to the question therefore of whether replacing a life sentence with an extended sentence amounts to the imposition of a more severe sentence and as such is impermissible. In this regard Mr Unwin has directed us to the recent decision (27 March 2018) in R v Thompson [2018] EWCA Crim 639. It seems to us, however, that there is nothing in this further point raised by Mr Unwin.

We have regard in particular to the fact that in Burinskas, Lord Thomas had this to say at paragraphs 35 and 36:

Lord Thomas went on in the next paragraph, paragraph 36 to say as follows:

It seems to us necessarily to follow from these observations by Lord Thomas in the Burinskas case that the substitution of an extended sentence for a life sentence cannot conceivably entail the imposition of a more severe sentence than that which was imposed by the Recorder in this case. We note indeed that in the Burinskas case, amongst the various individual cases which were under consideration, was included at least one instance of the replacement of a life sentence with an extended sentence. We would observe more generally that the proposition that an extended sentence can amount to a more severe sentence than a life sentence, a life sentence being the most severe sentence that the criminal courts can impose, it seems to us to be somewhat implausible.

It follows, as we have explained, that the appeal is allowed. We should observe that appropriate credit will have to be given in respect of time spent in custody pending the sentence, but that can be dealt with administrative. We note also that in relation to

MS ONG: My Lords, forgive me if I am in error but I had understood that there was no separate penalty for the bladed article and that appears in the Criminal Appeal Office summary.

MR JUSTICE PICKEN: No, you are right.

LORD JUSTICE SIMON: I think we have got the record "no separate penalty", so my Lord will change that in the final form of his judgment.

MR JUSTICE PICKEN: I will change it in the introductory paragraph where I also got it wrong.

LORD JUSTICE SIMON: Thank you both for your submissions.