No: 2009/1256/A2, 2009/1441/A2 & 2009//1405/A2 
Neutral Citation Number: [2009] EWCA Crim 2534
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 16 October 2009

B e f o r e:

LORD JUSTICE RIX 

MR JUSTICE McCOMBE 
 
MR JUSTICE BURNETT 
- - - - - - - - - - - -
R E G I N A 

v 

SCOTT COLLINS
DARREN THOMPSON 
ANTHONY BARRETT 
 
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
Mr P Doyle QC appeared on behalf of the Appellant Collins
Mr D Wilson appeared on behalf of the Appellant Thompson
Miss J Humphreys QC appeared on behalf of the Appellant Barrett
- - - - - - - - - - - -
J U D G M E N T
1.	LORD JUSTICE RIX:  These three appeals against sentence concern the sentencing guidelines for causing grievous bodily harm with intent (the offence of section 18 under the Offences Against the Person Act 1861) and in particular the phrase used in those guidelines "particularly grave injury".  The three appellants are Scott Collins, Anthony Barrett and Darren Thompson who, on 26th January 2009 at the Central Criminal Court before His Honour Judge Morris QC and a jury, were convicted of the section 18 offence and on 17th February 2009 were sentenced in the case of Collins and Barrett to 14 years' imprisonment (with days on remand counting towards sentence) and in the case of Thompson to 10 years' imprisonment (also with days on remand to count towards sentence).  They now appeal against sentence by leave of the single judge.
2.	The offence occurred on 8th June 2007 and arose out of what was originally a minor dispute involving the brother of the 26‑year‑old complainant, a Mr Hatton, and the appellant Collins.  It appeared that about a week before that day, Mr Hatton's brother had been assaulted in a public house in Romford and believed Collins to be the man responsible.  On that evening, 8th June 2007, Hatton had a conversation in the same public house with Collins' mother which upset her and was reported by her to Collins.  Collins, as a result, contacted Barrett and Barrett in turn contacted Thompson, the three of them agreeing to attend the public house in order to confront Hatton.  Although it was disputed at trial that Collins and Thompson knew that Barrett was bringing a gun to their meeting, the jury accepted that they did know and on these appeals it is accepted on all sides that the basic situation was that these three men agreed to assemble to confront Hatton with one of them, to the knowledge of the others, bringing with him a firearm to use in that confrontation.
3.	So it was that at shortly after 10 pm that night a confrontation took place.  Hatton became involved in an argument with Collins.  Hatton made the error perhaps of punching Collins and indeed knocking him to the floor which was taken by the three as a sign for action.  Barrett produced the gun and shot Hatton.  Hatton initially continued to confront him and then retreated back into the public house, which they were outside of, but Barrett and Collins ran after him and Barrett shot him a second time in that second phase of the action.  The appellants ran from the scene.  The incident was captured on CCTV.
4.	Both shots fired at Hatton found their marks.  One was to the abdomen and passed close to the liver and right kidney.  The liver was described in the medical evidence as being "shaved".  That bullet went through the colon, perforating it in a number of places.  The second bullet was to the left area of the groin where the bullet could not safely be removed and where it still remains.  Although it appears that the victim of this shooting entered hospital conscious and alert, he remained in hospital for a total of 10 days and in the course of that time suffered a colostomy, although fortunately that was in his case an operation which could be reversed, and he re‑entered hospital some months later for its reversal.  The medical evidence described that reversal in itself as being major surgery.  The shooting was at close range and it is accepted that the bullets fired were aimed at the areas that they entered.  Indeed it is submitted that it is to be taken into account on behalf of the appellants that the shots were not fired at head or heart.
5.	Collins was born on 11th February 1986 and thus was 21 at the time.  Barrett was born on 5th June 1981 and was 26.  Thompson was of the same age.
6.	Collins and Barrett were relatively lightly convicted.  Thompson was more seriously convicted, having sentences in his past for attempted robbery and possession of a firearm.  Nevertheless, the judge accepted that his responsibility was less than that of the two others.  A pre‑sentence report in his case described his motivation for committing the offence as one of misplaced loyalty towards Barrett and it appears that his offending was often linked to peer pressure and distorted decision‑making skills.  A pre‑sentence report in the case of Collins said that he continued to refuse to accept any responsibility for what had happened, although he did express his regret for Hatton's injuries.  In the case of Barrett, a pre‑sentence report said that he accepted that he had committed the offence and appeared to be remorseful.  He also had character references.
7.	In his sentencing remarks the learned judge observed that the injuries suffered by the victim could easily have been fatal and that if they had been all three appellants would have been facing convictions for murder.
8.	On the question of dangerousness he concluded that that threshold had not been crossed and therefore turned towards the determinate sentences which he should impose.  He then immediately addressed the sentencing guidelines of the Sentencing Guidelines Council for this offence.  He emphasised, as is always important to bear in mind, that they were guidelines and no more.  It was accepted before him that all the ingredients, save (it was submitted) one, involved in the highest category under this offence were present in the present case.  The factors taking a case into the highest level of this offence are that life‑threatening or particularly grave injury has been incurred as a result of premeditated action involving the use of a weapon acquired prior to the offence and carried to the scene with the specific intent of injuring the victim.  All those factors, it was accepted, were in play, save that it was submitted that the injuries caused to Mr Hatton were neither life‑threatening nor particularly grave.  The starting point for that first level is 13 years' custody with a sentencing range of 10 to 16 years.  The second level in the case of section 18 distinguishes between on the one hand life‑threatening or particularly grave injury which has not been premeditated and, on the other hand, premeditated injury involving the use of a weapon acquired prior to the offence and carried to the scene with specific intent of injuring the victim but where no life‑threatening or particularly grave injury was caused.
9.	The judge recorded that although it was accepted before him that the injuries were potentially fatal they were said to be neither life‑threatening nor in fact particularly grave.  The judge disagreed with those submissions.  He was satisfied that Mr Hatton had suffered particularly grave injuries ‑ in fact he used the gloss "particularly serious" but there was no doubt that he was referring to the variable of particularly grave injury ‑‑ and that it was largely as a result of the swift and efficient medical intervention which he received that he was able to make as good a recovery as he did.  He was satisfied the case therefore fell into the highest category of that offence.  He then turned to the following additional aggravating features in the case, which he identified as being first that the three appellants went as a group or gang to carry out the offence; secondly, that the weapon in play was a loaded firearm; and thirdly, that two shots had been fired at the victim on two separate occasions in vital parts of his body.  In effect he treated Collins as the organiser, Barrett as the gunman (albeit known to be by all three) and Thompson as the person brought along for further support.  In the end he sentenced the three to 14 years, 14 years and 10 years respectively as we have indicated.
10.	On this appeal the submission is renewed that the victim's injuries were not particularly grave.  The judge did not say that they were life‑threatening, but it is accepted that they were potentially life‑threatening, repeating a concession made before the judge.  What is the difference between a particularly grave injury and any injury for the purpose of a section 18 offence, which by definition must be a serious one?  The guidelines themselves throw no particular light upon that question.  Miss Humphreys QC on behalf of Barrett submits that the critical feature for a particularly grave injury is that it should be permanent and the injuries in the present case are contrasted, on behalf of the appellants as a whole, with permanent injuries such as the loss of an eye or of a limb.  It is also accepted by at least one of the counsel before us in a written advice that multiple fractures could be described as particularly grave.  Nevertheless, at the end of the day Miss Humphreys, who had most clearly advanced the categorisation of particularly grave injuries as being permanent ones, accepted that a non‑permanent injury may be particularly grave.  We would add that a permanent injury also may not be particularly grave ‑ one obvious example being a scar, and there may be many others that one could think of.
11.	Miss Humphreys also accepted that an injury may escalate from being merely serious to the particularly grave because of its subjective effect on a particular person.  If that is correct, and we have no need to decide that question in this case because the victim in this case with something amounting possibly to bravado has declined to effect a victim impact statement, there is no sign that it has had any long‑lasting effect upon him.
12.	Mr Wilson on behalf of Thompson submitted that if one had regard to the responses to consultation which had preceded the advice which perhaps originally came from the Sentencing Advisory Panel, all of which led in due course to the guidelines of the Sentencing Guideline Council, it could be submitted, as he did, that the guidelines had introduced the language, not present before, of particularly grave injury added to cover a concern of consultees relating to permanent injury.  We have already given our reasons, however, for considering that particularly grave and permanent injuries are not glosses of one another.  The language of the guidelines is particularly grave.
13.	In our judgment, like that of the judge, these were particularly grave injuries.  They were bullet wounds to vital parts of the body.  Ignoring those vital organs which the bullets so nearly affected but did not, as we do for the moment, one at least of the bullets nevertheless perforated the colon in several places and led to two major operations ‑ one a colostomy and the other a reversal of a colostomy.  In our judgment, on any view of the matter these were particularly grave injuries.  They were also, and this is relevant to an overall view of the gravamen of the matter, potentially lethal, particularly as they arose out of gun shots aimed at vital parts of the body, even if a part of the body different from the head or the heart ‑ the closeness with which the first bullet passed to the liver and kidney indicates the point.  On any view therefore this offence falls within the SGC's highest category for section 18.  
14.	It has not been submitted to us that even if because of the presence of particularly grave injuries this offence was within the highest category of the guidelines, nevertheless the judge placed it too high within the broad range of that category by choosing the sentences that he did, at any rate in the case of Collins and Barrett.  We have nevertheless considered that question for the sentencing range at this highest level is a broad one.  Nevertheless in our judgment this was a most serious example of this category of offence.  We emphasize as the judge did the fact that the three men went as a gang or group and that not content with one shot, two shots were fired but not in quick succession as may well happen when a firearm is used, but at separate stages or phases of the incident as a whole.  These are serious aggravating features.  However, as serious as any an aggravating feature is the fact that the weapon used, and the sentencing guidelines only refer generally to "a weapon", was a loaded firearm.  These courts have repeatedly and also very recently emphasised the seriousness of even the possession, let alone the use, of such firearms.  In Attorney General's Reference 58 to 66 of 2002 this court said that a sentence of seven to eight years after a trial would be appropriate for the offence of possession of a firearm with intent, even when that firearm was not in fact fired.  The recent decision in which Lord Judge, CJ, gave the judgment in Wilkinson [2009] EWCA Crim. 1925, has most recently re‑emphasised the seriousness of the use of firearms.  Lord Judge there remarked that deterrence and punitive sentences are required and should be imposed in such circumstances.  
15.	The importance of the use of a firearm is also emphasised in the statutory provisions relating to murder.  Where a firearm is used the murder in question is immediately taken up to that category of sentencing for the purpose of minimum periods which starts at 30 years.  Therefore, there were in this case the most aggravating of features.  When we take into account the particularly grave injuries which the victim suffered and the aggravating features to which we have referred, in particular the use of a loaded firearm and its use twice in separate phases of the assault on Mr Hatton, we have no doubt that these sentences were properly imposed and indeed deserved.  For these reasons these appeals are dismissed.