No: 200900860/A2 
Neutral Citation Number: [2009] EWCA Crim 1143

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 6th May 2009
 
B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE BLAKE 

MR JUSTICE SIMON 
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 
ATTORNEY‑GENERAL'S REFERENCE NO 14 OF 2009   
 
(RUPERT MORGAN)
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Computer Aided Transcript of the Stenograph Notes of  
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Mr L Mably appeared on behalf of the Attorney General
Mr Murdo‑Smith appeared on behalf of the Offender
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J U D G M E N T
	 LADY JUSTICE HALLETT:  
1. 	The offender, Rupert Morgan, is now aged 38.  He appeared at the Harrow Crown Court charged with offences of wounding with intent and robbery.  He pleaded not guilty and he was convicted by the jury.  Sentence was adjourned pending the preparation of a pre‑sentence report specifically designed to consider the question of dangerousness.  The author of the pre‑sentence report reported on the offender's background, which included a large number of previous convictions for violence, and came to the conclusion that the offender poses a high risk of re‑offending and a high risk of harm to the public.
2.	On 23rd January 2009 the trial judge, His Honour Judge Arran, concluded that the criteria for dangerousness were not met and sentenced the offender to a total of 9 years' imprisonment, 9 years on the wounding with intent count and 6 years ordered to run concurrently on the robbery count.  Her Majesty's Solicitor‑General, represented by Mr Mably, seeks leave of the court to refer the sentence to us.  
3.	The facts of the offence may be summarised as follows.  On the night of 5th/6th July 2008 the victim, Mr Senco, attended a party in Harlesden.  He rarely drank alcohol but he was feeling the effects that night.  At about 3.15 am he left the party and alone walked to a bus stop to wait for a night bus.  He was approached by a woman.  During their conversation she revealed that she was a prostitute.  At her suggestion he agreed to go to her flat and pay for sexual intercourse.  He followed her to a nearby block of flats, was taken up some stairs where, having paid his money, he and the woman had sexual intercourse in the communal area.  During intercourse his mobile telephone dropped from his pocket.  Once intercourse was over he picked it up.  The prostitute however decided to claim the phone was hers.  Shortly afterwards the offender arrived on the scene.  He, was working in league with the prostitute.  He appeared angry,his fists were clenched. He demanded the phone, implying that the victim had taken the prostitute's mobile phone.  Mr Senco said he had not taken anything and the offender repeatedly told Mr Senco that he had to pay the woman more money. He spoke to the prostitute as if he knew her.  Mr Senco refused to pay.  The offender pulled out a knife and held it to Mr Senco's stomach demanding: "Give me your money".  He threatened to stab Mr Senco.  Mr Senco pushed the offender and tried to run off.  However, he found himself not back on the street as he hoped but in a secluded courtyard with no visible means of escape.  He was cornered by the offender who had been joined by a second man.  Owing to the extent of the injuries Mr Senco then received, his recollection of the attack is unclear.  However he recalled the offender approached him and struck him repeatedly on the head with a heavy piece of wood.  He fell to the ground feeling nauseous and tried to get up.  The second man came towards him and hit him over the head with a bottle.  He was also slashed on the ear with a knife.  Having been rendered unconscious he tried to get up, whereupon his attackers goaded him and laughed at him.  Every time he got up he fell back to his knees.  He was covered in blood.  Whilst he was rendered defenceless the offender and his accomplice stole £120 in cash and a bank card.  Mr Senco was eventually able to make good his escape.  Passersby, seeing his desperate condition, called the emergency services.
4.	When examined at hospital Mr Senco was found to have the following grave injuries:  a significant laceration to the right parietal region of the head with clear liquid leaking from it, a right frontoparietal depressed skull fracture with fragments of bone in the cortex of the brain, weakness to the left side of the body as a result of the brain injury, a deep laceration to the right ear and a dislocated shoulder.  His injuries required surgery to elevate the skull fracture and remove the bone fragments from the brain.  The injuries to his head have had a lasting and permanent effect on Mr Senco:  he has scarring to his head and ear lobe.  Most significantly, he has brain damage.  He has experienced a loss of feeling in his left arm and loss of grip to the hand.  His brain function has been impaired.  This has led to memory loss, painful headaches motor neurone damage which affects his speech and the formulation of words.  He has difficulty retrieving words.  His speech lacks fluency and he sounds hesitant.  He now must use simplistic language and concepts to communicate.  He finds social situations difficult as a result and not surprising has become clinically depressed.
5.	The offender was arrested on 10th July 2009 at home.  He was interviewed under caution.  A prepared statement was read out by his legal representative in which he denied any involvement maintaining that he had an alibi, in that he was at home with his girlfriend.  He admitted during the interview, however, that he smoked crack cocaine and heroin.  In due course Mr Senco identified the offender as the man principally responsible for the attack.
6.	On behalf of Her Majesty's Solicitor‑General, Mr Mably has brought to our attention what, on any view, is an appalling record on the offender's part for violence.  He summarised it as showing a pattern of offending with repeated acts of violence directed, particularly at innocent members of the public chosen at random.  It also shows offending committed to fund the offender's abuse of Class A drugs.  It shows a failure to respond to any kind of intervention.
7.	We shall summarise just a few of his offences.  In 1989 he was sentenced to 9 years' detention in a young offender institution for carrying a firearm with intent, for false imprisonment, two offences of robbery, three offences of  attempted robbery and two offences of theft.  The offender, under the influence of crack cocaine, forced a minicab driver at gunpoint to drive him around London whilst he committed a series of armed robberies and thefts.  In 1995 he was sentenced to 2 years' imprisonment for affray.  The offender became involved in a fight, again with a minicab driver.  He had a knife with him.  In 1997 he was fined for having a bladed instrument in public.  In 1998 he was sentenced to 4 years' imprisonment for burglary.  He broke into the home of an 80 and 87 year old couple who were asleep in their bed.  Pillows were placed over their faces and the offender made off with their property.  In 2002 he was sentenced to 12 months' imprisonment for assault occasioning actual bodily harm.  In 2003 and 2004 he committed offences of dishonesty.  In 2004 he was sentenced to 40 days' imprisonment, again for having a bladed article in a public place.  In 2006 he was sentenced to a community order for affray, common assault and possessing an offensive weapon.  Again, under the influence of crack cocaine he entered a supermarket armed with a pair of scissors.  He picked up an 11‑month baby in front of its parents and threatened the baby with scissors saying:   "Time to get rid of the children."  Other offences led to sentences of community penalties, which he breached on more than one occasion.  Following his appearance at the Harrow Crown Court for the instant offences, the offender was convicted on 18th March 2009 of an offence of possessing a bladed article committed on 19th April 2008. He was on bail for that offence at the time he committed the present offence but this may not have been brought to His Honour Judge Arran’s attention.  
8.	The author of the pre‑sentence report noted that despite his conviction the offender continued to assert his innocence, insisting that police had planted evidence at his flat to bolster the prosecution case.  As we have already indicated, she assessed the offender's risk of reoffending as high and the risk to the public of serious harm as high.  In addition she noted that the offender had threatened her stating he would arrange to have her attacked if he received a sentence of imprisonment for public protection.  Further, in prison he has attacked a female visitor and received an adjudication for fighting with another inmate.  .
9.	Mr Mably drew our attention to what he submitted were a number of aggravating features, taking the two offences together.  First, the victim suffered a particularly grave injury.  Second, the attack was a group attack in which the offender was the ringleader.  Third, the offender and his accomplice used dangerous weapons.  Fourth, the weapons were used to strike at the victim's head, a vulnerable area of the body.  Five, the degree of violence used was gratuitous in the sense that the victim was struck after he had been rendered defenceless and it was to a degree unnecessary to effect the robbery.  Six, the offender was carrying a knife which indicated premeditation.  Seven, the attack was carried out in the course of a robbery.  Eight the offender has a bad criminal record.  Mr Mably was unable to identify any mitigating features.	For those reasons Mr Mably submitted that the imposition of a determinate sentence rather than a sentence of  imprisonment for public protection failed to reflect the significant risk of serious harm that the offender presented to the public.
10.	On behalf of the offender it was accepted that a sentence of imprisonment for public protection was an option open to the judge.  However, it was argued that the judge gave proper consideration to the imposition of such a sentence.  He had before him all the information that he required.  He had presided over the trial.  He had heard all the evidence.  He knew all there was to know about the offender and the nature and circumstances of the offence.  He nevertheless concluded that this offender was not dangerous.  It was submitted that this court should be slow to interfere with the exercise of a trial judge's discretion in those circumstances.
11.	Mr Murdo-Smith submitted the Solicitor‑General has failed to identify failings on the part of the judge sufficient justify the court’ intervening in the exercise of his discretion. Further, he argued that it was not established that the fact that the offender carried a knife meant that he intended to use it to commit a robbery, albeit it was accepted that the serious violence was gratuitous.  He maintained the robbery was complete before that violence started. Although he was forced to accept that the injuries suffered by Mr Senco were very grave, we were asked to bear in mind that it was thought the most serious of the injuries, the brain damage, had been caused by a blow with a bottle struck by the second man.
12.	There is, of course, considerable force in the submission that Parliament having given judges a discretion as to whether or not to impose a term of imprisonment for public protection, Her Majesty's Solicitor‑General must provide compelling arguments to persuade this court that the judge  has erred in the exercise of that discretion sufficiently for us to intervene.  As Mr Murdo-Smith rightly observed an experienced Crown Court judge concluded that the offender was not dangerous having presided over the trial and having seen and heard virtually everything there is to know about the offence and the offender.  Further, it is often said in this court that an assessment by a probation officer, or even a doctor on the question of dangerousness is not binding on the sentencing judge.  He must make up his own mind. However, with respect to this very experienced judge, we do not understand the basis for his ignoring the probation officer's assessment in this case.  In our judgment, everything points to the fact that this offender is dangerous: his repeated violent offending, his involvement in yet another robbery in which weapons were used, and his active participation in an appallingly savage beating.  His use of largely gratuitous violence may lead one to the unfortunate conclusion he enjoyed the experience.  There has to be, in our view, a very high risk of this offender's re‑offending and given his previous convictions, if he re‑offends there is a very high risk that any harm that he causes will be very serious indeed.  Members of the public require protection from him.  The only sentence, in our judgment, adequate to provide such protection is a term of  imprisonment for public protection.  Accordingly, we have no doubts whatsoever that this sentence was unduly lenient and we give Her Majesty's Solicitor‑General leave to refer it.
13.	We turn, therefore, to the second limb of Mr Mably's submissions on the adequacy of the determinate sentence to assist us reaching a decision on the appropriate level of the notional determinate sentence.
14.	Mr Mably argued that a total sentence of 9 years for the offences of wounding with intent and robbery were plainly outside the guidelines.  He referred us to the fact that no one in the court below seems to have considered the guidelines for an offence of robbery.  The only guideline put before the Crown Court judge and indeed put before us by Mr Murdo‑Smith is the guideline for wounding with intent.  Mr Murdo‑Smith attempted to argue that the judge was right to place this offence in the second level of gravity suggested by the Sentencing Guideline Council, where the victim suffered life threatening or particularly grave injury but where the offence was not premeditated.  He argued that the sentence passed was beyond the starting point for such offences and towards the upper part of the range of 7 to 10 years.  This, he submitted, reflects a proper consideration of the instant offence and the offender's previous convictions.
15.	There are, as Mr Mably observed, a number of flaws in this line of argument.  It ignores a number of important facts.  First, the guidelines are intended to provide a sentencing range for offenders of previous good character, a record, of the kind we have here is a substantially aggravating feature.  Also, it is clear, as the judge found, that this offence was premeditated.  The offender was said to be in cahoots with the prostitute.  Most importantly the offence of wounding with intent was committed in the course of or immediately following upon a robbery.  The guidelines which apply to this case, if they apply at all, therefore, are not just the wounding with intent guideline, but also the robbery guidelines for which the range is 7 to 12 years.
16.	There are so many aggravating factors in play here that any sentence was bound to be at the top end of the range, if not beyond.  More than one offender was involved.  The offender was the ringleader.  The offence was preplanned.  It was committed at night.  There was gratuitous violence and, of course, on the jury's verdict, the offender intended to inflict really serious bodily harm.  This offender was a party to a savage assault by two men, both of whom were armed and both weapons were used.  Couple those facts with the offender's dreadful record and a sentencing range of 7 to 10 years was, in our judgment, entirely inadequate.  This is an offence which, after a contested trial, would have merited a sentence significantly into double figures, had a determinate sentence been appropriate.  Loathe as we are, therefore, to interfere with the sentence of an experienced trial judge, who saw and heard the evidence, we are driven to the conclusion that the sentence was unduly lenient, both in terms of the failure to impose a sentence of imprisonment for public protection and in the length of the determinate term.  Having given leave to refer the sentence, we quash the sentences on both counts.  We substitute for them sentences of imprisonment for public protection.  The notional determinate term, in our view, should have been at the very least a sentence of 12 years. We are then obliged by Parliament to halve that sentence, giving a specified period of 6 years before the offender may apply for parole.  From that time any time spent on remand will be deducted.  We make it plain that we are not suggesting in any way that a sentence of 6 years would be appropriate.