No: 2005/3952/A6 
Neutral Citation Number: [2005] EWCA Crim 2292
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 13 September 2005
 
B E F O R E:

THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
LORD JUSTICE ROSE 

MR JUSTICE NELSON 
 
MR JUSTICE SILBER 
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R E G I N A 

-v- 

HOLLIE LOUISE D
 
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MR S ASH appeared on behalf of the APPELLANT
MR H VASS appeared on behalf of the CROWN
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J U D G M E N 
1.	LORD JUSTICE ROSE:  This is a disturbing case which presents this court, as it did the court below, with a very difficult sentencing decision, not only because the relevant draconian sentencing powers which we are considering are new and have not previously been considered by this court, but also because of the exceptional circumstances of this case which see a girl of only 13 in this court having been sentenced in the court below to detention for an indeterminate period.  She committed a catalogue of offences over a six month period between November 1994, when she was only 12, and May this year, but only one of those offences would be regarded by the public as truly serious.  
2.	On 31st May 2005 at Huntingdon Youth Court the appellant (as she is because we granted her leave to appeal at the outset of this hearing, the matter having been referred to the full court by the Registrar) pleaded guilty to three offences of criminal damage and one of affray and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  On 6th June at Peterborough Crown Court she pleaded guilty on arraignment to robbery and on 12th July 2005, taking four other offences including burglary and assaulting a police officer into consideration, Miss Recorder Marks sentenced her to detention for public protection under section 226(3) of the Criminal Justice Act 2003 - that is to say, detention for an indeterminate period, with a minimum term of 12 months.  No separate penalty was imposed in relation to any of the four offences for which she had been committed for sentence.  
3.	Hollie was born in December 1991 and so she is presently, as we have said, 13.  There was a co-accused aged 14, a girl called SH, who likewise pleaded guilty to the offence of robbery and she was sentenced on 28th June to a supervision order for three years.  
4.	Dealing with matters chronologically, in late November 2004 the appellant, then aged 12, with others, burgled a pre-school club in Offord Darcy, Cambridgeshire.  That was the first of the offences which she asked to have taken into consideration.  In the course of that burglary almost £2,000- worth of damage was caused.  That gave rise to the first offence for which she was committed for sentence.  
5.	On 29th March 2005 she had a bladed article in a public place and that gave rise to the second offence she asked to have taken into consideration.  On 29th April police officers were called to her mother's home in Offord Darcy because the appellant had been threatening her mother.  When they arrived they saw the appellant on the front porch abusing her mother verbally and she (the girl) had a knife in her possession.  Eventually she responded to the police officers' requests that she put the knife down and she was then arrested.  It became apparent that she had been responsible for causing damage to a car parked in the driveway.  Those two offences of affray and criminal damage were the third and fourth offences for which she was committed for sentence.  When she had been detained, she kicked a police officer on the leg and that gave rise to the offence of assaulting a police officer which was the fourth of the offences taken into consideration.  
6.	In the early hours of 4th May, following a series of hoax telephone calls made by the appellant to which the third offence to be taken into consideration related, the appellant caused about £60-worth of damage to a handset in a telephone kiosk.  That was the second offence for which she was committed for sentence.  
7.	We then come to the gravamen of her criminal behaviour, the offence of robbery on 9th May.  At about 6.30 in the afternoon an 11-year-old girl with a friend was walking her dog in a park in Offord Darcy.  They were approached by the appellant (whom they knew) and the co-accused, SH.  The appellant accused the 11-year-old of bullying her younger sister. The appellant pushed, shoved and ultimately punched the 11-year-old.  The attack was a sustained one, lasting some 20 minutes.  When the girl was on the ground she was kicked repeatedly by the appellant and the co-accused.  The appellant told the co-accused to search the 11-year-old and two charity wristbands were pulled from her wrist and a necklace from around her neck.  Her trainers were removed, albeit they were left at the scene.  The appellant and co-accused were scared off by two men who arrived at the scene.  
8.	The victim complained of pain in her head, back and ribs and her mother reported bruising and swelling to her cheek, jaw, chin area and the right side of her eye.  Three further bruises were noted on her upper arms and a large lump under her hairline when she was seen in hospital, where a doctor also noted tenderness beneath her left cheek and in her loin area and a small bruise in her left loin area.  
9.	When she was interviewed, the appellant made no comment to the questions asked.  Her co-accused accepted that she had punched the victim once in the face.  The appellant accepted that she had made a comment about a knife but she could not recall precisely what was said and she denied threatening to stab the victim.
10.	In passing sentence, the Recorder rightly described the robbery as the most serious offence and identified it as having taken place after the coming into force of the relevant provisions of the Criminal Justice Act 2003.  The Recorder said it was necessary to decide how serious the offences were and the robbery had been a brutal attack on a young vulnerable female unable to defend herself, offering no provocation and being subjected to repeated kicks.  The Recorder rightly identified the robbery and also the affray on 29th April 2005 as being specified violent offences under Chapter 5 and Schedule 15 of the Criminal Justice Act, although of course only the robbery is a serious offence within section 224(2)(b).  
11.	There were before the learned Recorder two reports, one dated 21st June and the other dated 6th July 2005, from Surbjit Ghuman a social worker with the Wolverhampton Youth Offending Team.  Those reports indicated an absence from the appellant of any remorse or empathy for her victims or herself when, as happened from time to time, she self-harmed.  The reports referred to the appellant creating opportunities to plan harmful behaviour which might relate to assaults on other people or self-harm and that that gave rise to a high risk of concern.  The author considered the prognosis poor and that the appellant presented a considerable risk to herself and others.  It was also apparent that the residential unit where two staff were provided for each resident at all times, where the appellant had been, was unable to manage her risk effectively.  The author concluded that the risk of offending, dangerousness and harm to the community and herself is "very high".  It is to be noted that neither of those reports specifically identified a risk of 'serious' harm to others.  
12.	The Recorder concluded that the robbery offence required a custodial sentence and that there was a significant risk to members of the public of serious harm in accordance with sections 226(1)(b) and 228(1)(b)(i) of the Act.  The Recorder did not consider that a life term was called for in relation to the robbery.  She said that, before reading the reports, she had been minded to impose an extended sentence but she had reached the conclusion that this would afford insufficient protection to the public from harm as the applicant would still only be a teenager if the maximum extension period of five years had been imposed and by that time the appellant would still have been growing and developing.  She concluded, reluctantly, that an extended sentence would not be sufficient for the purposes of this case.  She went on to describe the serious features of the offence of robbery, which she rightly categorised as a frightening incident for an 11-year-old subjected to a violent attack.  The Recorder also rightly drew attention to the aggravating feature that that offence occurred when the appellant had, as we have indicated, already been charged with a number of other offences.  The appellant she said, was a prolific offender who had failed to respond to previous sentences on more than one occasion and had breached her bail conditions.  She went on to pass the sentence to which we have referred.  
13.	Pausing there, we note that the sentencing remarks by the learned Recorder run to 19 pages of transcript and must therefore have taken a considerable time to deliver.  The Recorder is not to be criticised for the length of her remarks in this difficult case.  But it would have been much better, even if the defendant had been an adult, had she not been required, as she was, to stand throughout the delivery of those observations.  It is clearly unnecessary and undesirable for a child to be required to stand throughout such a lengthy sentencing process.  
14.	The appellant, as we have said, was born on 2nd December 1991.  Her only previous conviction before the offences with which we are concerned was on 30th March 2004 when, for an offence of handling stolen goods, she was given a referral order of three months and ordered to pay costs of £50.  
15.	There is before this court, which there was not before the Recorder when she passed sentence, a psychologist's report from Frances Blumenfeld, a consultant clinical psychologist.  She assesses Hollie as presenting a medium level of risk.  She is an intelligent girl with no diagnosable mental health disorder and no evidence of any delay in development, nor is there any evidence of her being addicted to alcohol or the use of hard drugs.  Her whole offending history during the short span to which we have referred is linked to a deterioration in her home situation, in particular her father's relapse into the use of hard drugs and leaving the family home, and the family conflict which has in consequence arisen between Hollie and her mother.  The report indicates that her current placement has reduced her level of risk and she has responded more positively to her current situation than to her previous situation in the residential home to which we referred.  There is a reference to her responding very aggressively to environments where there is a high level of expressed emotion and stress - that is her home - and when challenged.  The view was expressed by Miss Blumenfeld that Social Services should carefully consider future placement in order to reduce the risk to the public.  
16.	There is also before this court a report from Mr Jonathan Sloane of the Cambridgeshire Youth Offending Service prepared at the end of August.  Mr Sloane has come to court today and to his report in a moment we shall return.  
17.	The grounds of appeal, helpfully particularised by Mr Ash on behalf of the appellant rightly contend that the indeterminate sentence passed on the appellant was manifestly excessive having regard to the appellant's age and her potential to change significantly, her lack of criminal record apart from the one offence of handling to which we have referred, the short timescale of six months during which these offences were committed, the absence from her record of any previous custodial sentence, the fact that only two specified offences (robbery and affray) were committed, the fact that no serious harm has actually been caused to any member of the public and her acceptance of responsibility for her offending by pleas of guilty.  There is, he submits, no justification for the Recorder's decision to impose an indeterminate rather than an extended sentence in the fact that such a sentence would expire when she was still a teenager.  
18.	The submission was made in the grounds of appeal that an extended sentence under section 228 would have been adequate for the purpose.  Before us, at the court's invitation, Mr Ash canvassed the possibility that no risk of serious harm to the public has been shown and that therefore a detention and training order might be an appropriate sentence.  
19.	Mr Vass, on behalf of the Crown, in helpful written and oral submissions, did not resist the suggestion that an indeterminate sentence was inappropriate.  He pointed out that if the court concluded that there was a significant risk of serious harm to the public the court has an obligation, by the mandatory language of section 228(2), to impose an extended sentence.  
20.	In our judgment, the circumstances of the offence of robbery, as we have outlined them, when committed by a girl of 13, in conjunction with the reports to which we have referred demonstrate that she does present a risk of serious harm to the public.  Therefore, in our judgment, although there is, in this case, for the reasons identified by Mr Ash no justification for an indeterminate period, there is a statutory obligation to impose an extended sentence.  
21.	The question which then arises if a 12 month period of detention is, as it seems to us it is, appropriate is as to the period for which there should be an extension.  This is a matter to which we have given anxious consideration and we are much assisted by the report of Mr Sloane and what he has said to the court.  It is not necessary to review all the terms of his report but we draw attention to the following encouraging features so far as Hollie is concerned which give rise to a reasonable expectation that her conduct will greatly improve, in not too long a period of time, so as to reduce the risk she poses to the public. Although, on an almost daily basis during July and August, she was behaving in a petulant and unpleasant manner to others where she is, she is now, in Mr Sloane's words "currently resolving issues in a non-violent way" and there has been a great diminution in incidents of violence. There is some evidence that she is beginning to understand the effect of her offences on victims.  She has expressed regret in an apology letter to the victim of the robbery.  She has very sensibly assessed the impossibility of her being returned to her home environment.  She has accepted the support provided for her by the staff at Vinney Green where she is and she has talked honestly and consistently about the changes she wants.  She is, in Mr Sloane's assessment, "beginning to make the changes necessary to significantly reduce the risk she poses to others".  She has understandably been demoralised, as Mr Sloane points out, by the indeterminate sentence which was passed upon her.  Mr Sloane told us that an extension period of "at least" a year is, in his view, necessary.
22.	Taking all of those considerations into account, we have reached the conclusion that an extended sentence is appropriate in this case.  The sentence will be four years, consisting, as the Recorder below ordered, of a custodial period of 12 months and an extension period of three years.  That means that until about the age of 17½, it will be possible for those who are able to help Hollie and who are presently doing so to keep an eye on her after she has been released from the 12 month custody period.  That, we have no doubt, having regard to the impossibility at this stage in one so young of assessing precisely how she may grow and develop, is a course which in our judgment will serve her interests and the interests of the public.  
23.	Accordingly, this appeal is allowed.  The indeterminate sentence passed in the court below is quashed.  We pass an extended sentence of four years with a custodial term of 12 months and a three year extension.  
24.	The features of this case to which Mr Ash's grounds of appeal draw attention (as rehearsed in paragraph 17 above) demonstrate the unsuitability of an indeterminate term for one so young, with so little previous criminal record and with a degree of serious criminality limited to the robbery offence.