No: 201500820 A4 
Neutral Citation Number: [2015] EWCA Crim 1627
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 24th September 2015

 
B e f o r e:

LORD JUSTICE LLOYD JONES
 
MR JUSTICE BLAKE 

MR JUSTICE HADDON‑CAVE 

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R E G I N A 

v 

PAUL SMITH
 
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Computer‑Aided Transcript of the Stenograph notes of
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Mr A Rimmer appeared on behalf of the Appellant

Mr G Hughes appeared on behalf of the Crown
  
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J U D G M E N T
1.	LORD JUSTICE LLOYD JONES:  On 12th September 2014, in the Crown Court at Snaresbrook before His Honour Judge Kamill, the applicant pleaded guilty to a series of offences: counts 2, 3, 4 and 5 on the indictment.  On 9th December 2014, following a trial before His Honour Judge Dawson, he was acquitted on count 1, wounding with intent, and on 23rd January 2015 he was sentenced by Judge Dawson as follows and I set out here the sentences as recorded on the record sheet: count 2, wounding with intent, the sentence was recorded as an extended sentence of ten years with a custodial term of six years and an extension period of four years; count 3, attempting to wound with intent, the sentence is recorded as an extended sentence of five years with a custodial term of one year and an extension period of four years; count 4, possession of an offensive weapon, the sentence is recorded as an extended sentence of five years with a custodial term of one year and an extension period of four years; count 5, unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861, the sentence is recorded as an extended sentence of six years with a custodial term of two years and an extension period of four years.  All those sentences were to be concurrent, save for the sentence on count 5 which was to be consecutive.
2.	He now applies for leave to appeal against sentence on the grounds advanced, drafted by his counsel, and which were refused by the single judge.  However, the single judge referred the matter to the full court because the sentences passed are unlawful.  The applicant has now renewed his application for leave to appeal against sentence on the full grounds, and we have had the benefit today of the submissions of Mr Rimmer for the applicant and Mr Hughes on behalf of the prosecution.  We are very grateful to both of them.
3.	In the early hours of the morning of 15th June 2014 the applicant went to a party at an address in London E6 in order to confront his brother Steven, who had been making allegations about him.  The applicant's son, who was 21 years of age, accompanied the applicant.  The applicant went armed with a knife, described by the judge as a bayonet‑type knife, a very long and nasty looking instrument.  That gave rise to count 4.  
4.	The party was being held in a back garden, where a marquee had been set up.  Children had been present but were by that hour asleep in the house.  The applicant admitted attending the party to "scare the shit out of his brother".  He also admitted that he had deliberately changed his footwear and was wearing heavy books as he had anticipated a fight.
5.	Count 5 (and also count 1, wounding with intent, on which he was acquitted) related to the wounding of Seanna Prime.  When he arrived at the party the applicant walked into the marquee area carrying the knife.  Seanna Prime was the first person to approach him and she told him to leave.  There was conflicting evidence as to what happened next.  However, as the judge accepted in his sentencing remarks, the jury at trial, in acquitting the applicant of count 1, must be taken to have accepted his version of what occurred.  It appears therefore that she started pushing the applicant.  He was holding the knife in front of her as she held him on his forearms.  At some point while she was holding his forearms and he was holding the knife in the air, he was punched from behind, and on being punched he fell back, she fell on top of him and was stabbed through the stomach.  The judge proceeded on that basis and so do we.  
6.	Count 2 related to the wounding of Richard Corcoran.  Other guests at the party started to throw bottles at the applicant.  Richard Corcoran was trying to protect Seanna Prime, and as he approached the applicant, the applicant stabbed him in the chest in retaliation, he said, for the bottles that were being thrown at him.  
7.	Count 3 related to the attempted wounding of Andrew Howe.  Andrew Howe had intervened.  He stated that the applicant went for him with a knife and attempted to wound him, causing him some minor abrasions across the stomach area.  
8.	The applicant and his son then left the party.  The knife was found close by.
9.	Seanna Prime suffered an incised wound to the right side of the umbilicus measuring 2.5 by 2 centimetres.  The abdominal penetrating injury was seen to penetrate the base of the right lobe of the liver and there was active internal bleeding.  She also had a puncture wound to her right hand.  She required surgery. 
10.	Richard Corcoran sustained a wound 1 centimetre by 1 centimetre to the centre of the chest, a 1 centimetre laceration across the base of his left thumb, which was fractured, and a superficial laceration across the back of the right middle and little fingers.  
11.	The applicant himself was taken to Newham University Hospital and records there noted a vertical 5 centimetre full thickness laceration to his scalp which required five sutures.  He also had extensive bruising to the back and he sustained supervision abrasion over the back of his legs.
12.	The applicant had initially put forward a basis of plea in which he relied on excessive self‑defence in relation to counts 2 and 3.  However, this was not accepted by the Crown and was later abandoned and replaced by a second basis of plea.  This was that he retaliated against those who were being hostile to him.  He was being punched and bottles and subsequently chairs were being thrown at him.  In retaliation he took the fight to Andrew Howe and Richard Corcoran, resulting in their being wounded by the knife which was in his possession.  The 5 centimetre gash to the applicant's forehead was received prior to his attacking Mr Howe and Mr Corcoran.  The Crown accepted the second basis of plea and the judge sentenced him on that basis.
13.	The applicant was born in 1967, he is now 48 years of age.  He had 14 previous court appearances for 25 offences between 1982 and 2011.  They included in 1987 a section 47 assault, in 2011 a battery, and in 1992 and in 2006 offences of possessing offensive weapons.  
14.	There was before the court a pre‑sentence report.  The author of the report said that in interview the applicant claimed that he tried to leave before the violence started and that most of the people were attacking him.  He said that he had been drug‑free for many years.  His offending history involved violence and was as a result of his not being able to control his anger and temper.  He was assessed as a high risk of serious harm to his brother and members of the public.  He was 44 per cent likely to re‑offend.  He was assessed as being a dangerous offender under the terms of the Criminal Justice Act 2003.
15.	In passing sentence, the judge noted that he was passing sentence on the basis of the second basis of plea, and that was that he was retaliating because he was subject to what he felt was hostility by having bottles and other items thrown at him.  He had admitted that he had gone to "scare the shit out of his brother".  He had not only brought the knife with him, but he admitted to deliberately changing his footwear to heavier boots as he anticipated some sort of fight.  He had already pleaded guilty to the section 20 offence committed against Seanna Prime and he fell to be sentenced on the basis of his plea that she was stabbed through the stomach as a result of his reckless holding of the knife.  Once that had happened, he then turned his attention to another man at the party who was nothing to do with him.  He was trying to prevent the applicant from continuing and trying to protect Seanna Prime.  The applicant admitted to stabbing him in the chest with intent.  His position was that he was retaliating because bottles had started to be thrown at him.  Another man, Andrew Howe, who was Seanna Prime's boyfriend, then intervened as well.  As far as he was concerned, the applicant went for him with a knife and attempted to wound him.  His offending was, without any doubt, a vicious response.  He had no axe to grind with the victims, who were perfectly innocent people at the party, not connected with his brother. 
16.	In considering dangerousness, the judge noted that the applicant had given his evidence in a very thoughtful and balanced way.  He showed remorse and said on a number of occasions that he could not explain why he had acted in the way that he did.  At least three witnesses said his act was deliberate, but the jury had acquitted him of the section 18 offence.  In the judge's view, however, he had no regard for innocent people.  The judge said that the pre‑sentence report had been criticised by his advocate because the probation officer had made a decision that the applicant was dangerous.  The judge considered that there was no problem with the author of the pre‑sentence report making such an assessment and coming to that conclusion; that was only one factor to be taken into account by the judge arriving at his conclusion.
17.	When considering the issue of dangerousness, the court reviewed his previous convictions.  In the judge's view, the previous convictions did not show a pattern of escalating offending.  They did, however, reflect someone who got involved in spats and disputes, sometimes in public, and who carried weapons of one sort or another, so they were of some relevance, although minor relevance, to the decision on dangerousness.
18.	The judge considered that if something went wrong in the applicant's personal life again, which it almost certainly would from time to time, he might again act in such a way.  Once upset, he was pretty unstoppable.  
19.	The judge said that the fact that he armed himself with such a vicious weapon, that he did not stop after causing such a nasty injury to Ms Prime, and that it all blew up out of nothing led to the conclusion that there could be no other finding than that he was a dangerous individual.  The reality also was, presumably, that if he had actually come across his brother, he might well have suffered something even more severe, possibly a fatal injury, rather than the two nasty stab wounds which were the outcome of the visit to the party.  In the judge's view, there was no doubt that he fitted the criteria for dangerousness.
20.	The judge then turned to the guidelines.  It was agreed that it was a lesser harm case because the injury to Richard Corcoran, although a nasty stabbing, was not excessively serious in terms of section 18.  It was a higher culpability case because of premeditation, arming himself with a knife, and the use of the weapon.  The sentence range was from five to nine years.  It was aggravated by the circumstances, in particular the fact that there were two section 20 matters as well and that he continued with the knife after committing the offence on Richard Corcoran.  
21.	The positive elements of the pre‑sentence report were taken into account.  The judge expressed the view that clearly, apart from lack of control when things did not go right, he was a personable man.  The judge gave him full credit for his mitigation, the strongest mitigation being the guilty pleas.  
22.	The judge then explained the sentences he imposed.  The sentence on the section 18, count 2, was six years, taking into account one‑third credit for his guilty plea; that injury could have been life threatening.  In relation to the section 20 matter against Seanna Prime, the sentence was two years' consecutive.  In relation to the count relating to the attempted stabbing of Andrew Howe, the sentence was one year concurrent.  For possession of the knife, the sentence was one year concurrent.  The judge then said this:

i.	"As I said, I find you dangerous and therefore this will be an extended sentence and the extension period will be one of four years.  

ii.	What that means is that you will serve two‑thirds of the eight years and then be released.  You will get full credit, as I say, for the time you have spent in custody already.  After your release your licence period will extend.  The full term of your licence period will be eight years plus four years, calculated from now, less any time that you serve on remand." 

23.	It is said on behalf of the applicant that the extended sentence was wrong in principle and manifestly excessive.  It is also said that the assessment of his posing a significant risk to members of the public was inappropriate in the context of the collective violence visited upon the applicant, the applicant's amended basis of plea and the absence of significant past offending for violence.  It is said that the factual nature of the offending fell within the determinative sentence parameters of category 2 of the guidelines.  It is also said that the judge gave insufficient regard to mitigation, the guilty pleas and the contrition shown.
24.	We turn first to the fact that the sentences as recorded are unlawful sentences on two grounds.  First, it has been constructed as a number of custodial terms with one freestanding extension period.  Secondly, the judge purported to impose custodial terms of less than four years on counts 3, 4 and 5, where the applicant did not have a previous conviction for a qualifying offence.  
25.	The judge constructed the extended determinate sentence from multiple consecutive custodial terms and then one concurrent extension period.  In R v Brown [2006] EWCA Crim 1996, the court confirmed that an extended sentence is a two part sentence comprising a custodial element and an extended licence period; an extension cannot be added on to two separate custodial terms.  
26.	Furthermore, an extended sentence of imprisonment may be imposed only if the offender meets one of two qualifying conditions: (a) the offender has been convicted of an offence listed in schedule 15B of the Criminal Justice Act 2003 before committing the latest offence; or (b) the appropriate custodial term would be at least four years.  As neither of these conditions was met in the applicant as case, extended sentences on counts 3, 4 and 5 five were, for this additional reason, unlawful.  
27.	Furthermore, it appears that they would not give effect to the intention of the judge as that appears from his sentencing remarks.  The judge intended, as evidenced by the sentencing remarks, for the applicant to be sentenced to eight years in custody with a four year extended licence period thereafter.  However, the sentence has been interpreted by the court official who completed the record sheet as four separate extended sentences of imprisonment, each with a four year extension period.  Count 5 is recorded as a consecutive sentence.  In accordance with the sentence recorded, the applicant would be released on licence at the two thirds point of his custodial term, but would be subject to an extended licence period of eight years.  It will be necessary to return to this matter after considering the renewed application for leave to appeal against sentence on the grounds advanced by Mr Rimmer for the applicant.
28.	We turn to the grounds advanced by the applicant for which leave was refused and which are now renewed.
29.	We are totally unpersuaded by the submission on behalf of the applicant that the judge erred in his conclusion that the applicant was dangerous within the meaning of the Criminal Justice Act 2000.  The judge gave detailed consideration to the evidence relating to this issue.  He directed himself correctly as to the test to be satisfied.  So far as the instant offences were concerned, the applicant went out looking for a violent confrontation: he was armed with a particularly vicious weapon and heavy boots.  He had no regard for innocent people.  Mr Corcoran was stabbed because he tried to intervene.  The applicant kept and used the knife throughout the incident.  He did not stop using it after causing a serious injury to Ms Prime.  
30.	There was further support for the view that he was dangerous in the pre‑sentence report.  The author of that report drew particular attention to the fact that he had shown little regard for the victims and continued to minimise the seriousness of his behaviour.  While the decision on dangerousness is obviously ultimately one for the judge, it was appropriate and helpful for the author of the report to express a view on this issue, and the judge was clearly entitled to take it into account.  Indeed, we note that section 229(2)(c) of the 2003 Act provides that the court, in making an assessment of dangerousness, may take into account any information about the offender which is before it.  
31.	So far as the applicant's previous convictions were concerned, the judge considered that they did not show a pattern of escalating offending, but they did reflect someone who gets into disputes in public and who carries a weapon of one sort or another.  This, the judge thought, was of some but of minor relevance.  
32.	The judge also had the advantage, to which we have referred, of having heard the applicant give his evidence at trial.  
33.	In our view, there was an abundance of evidence on which the judge was entitled to conclude that the applicant was dangerous.  Furthermore, we are unable to accept the submission that the judge paid insufficient regard to the surrounding facts of this case, in particular what Mr Rimmer describes as "the collective violence visited upon the defendant at or about the time Ms Prime confronted the defendant and the defendant's amended basis of plea".  This appalling incident was initiated by the applicant, who went out looking for trouble and armed himself accordingly.
34.	Next, it is said that the extended sentence of 12 years was wrong in principle, harsh and excessive.  Furthermore, it is said that the sentences failed to take account of the applicant's contrition and that full credit for the guilty pleas was not reflected in the sentence.
35.	The judge made clear in his sentencing remarks that it was his intention to impose a custodial term of eight years and an extended licence period of four years.  
36.	The applicant fell to be sentenced for one count of wounding with intent against Richard Corcoran, one count of attempting to wound with intent against Andrew Howe, one count of possession of an offensive weapon and one count of unlawful wounding against Seanna Prime.  
37.	However the total sentence is made up, having regard to the totality of the offending, we are unable to agree that an extended sentence of 12 years, comprising eight years custodial element and four years extended licence period, is even arguably manifestly excessive, and even after full allowance is made for the pleas of guilty.  Accordingly, we refuse leave to appeal on the grounds advanced on behalf of the applicant.
38.	It is, however, necessary to restructure the sentences imposed because the sentences on counts 3, 4 and 5 are unlawful.  We propose therefore to impose a single extended determinate sentence of 12 years on count 2, constructed from an eight year custodial term and a four year extension period, and to impose concurrent determinate sentences on the remaining counts.  In our view, the overall seriousness of these associated offences justifies the imposition of such a sentence on count 2.  This course, which involves aggregating the sentences into the lead offence and thereafter imposing concurrent terms, was improved by this court in Pinnell and Joyce [2010] EWCA Crim 2848.  In this way we consider that effect will be given to the judge's intentions, evidenced by his remarks when sentencing the applicant, and effect will also be given to what we consider to be the justice of the case.  
39.	Accordingly, the extended sentences imposed will be quashed and the following sentences substituted: on count 2, the sentence will be one of a 12 year extended sentence, comprising an eight year custodial term and an extended licence period of four years; on count 3 the sentence will be a determinate sentence of one year's imprisonment concurrent; on count 4 the sentence will be a determinate sentence of one year's imprisonment concurrent; and on count 5, the sentence will be a determinate sentence of two years' imprisonment concurrent.
40.	MR RIMMER:  I was just going to say, my Lords, that notwithstanding that this renewed application has markedly been unsuccessful, I am here however in part through the Registrar of Criminal Appeals.  Of course the narrow issue is as to the lack of clarity in the expression of how the lead offence gave rise to the 12 year extended sentence.  I say that because I appear without a representation order. 
41.	LORD JUSTICE LLOYD JONES:  Mr Rimmer, there are exceptional circumstances in this case which do justify that course.  We will make a representation order.  We are grateful for your assistance, both in relation to the unlawful sentences, which have given rise to the exceptional circumstances, and also for your assistance in relation to the other matters on which you were unsuccessful.
42.	MR RIMMER:  I am much obliged.