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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General Reference Nos 57 & 58 of 2004 [2004] EWCA Crim 2098 (26 July 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/2098.html Cite as: [2004] EWCA Crim 2098

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		26th July 2004

Monday, 26th July 2004

1. LORD JUSTICE ROSE: The Attorney General seeks the leave of the court under section 36 of the Criminal Justice Act 1988 to refer sentences which are said to be unduly lenient. We grant leave.
2. The offenders are Thomas Eamon Barrow (to whom we shall refer as "the father") and Daniel James Barrow (to whom we shall refer as "the son"). The father was born in April 1960 and so is 44 now. The son was born in December 1985 and so is 18 now, although he was 17 at the time of the offences.
3. On 4th September 2003 both offenders pleaded not guilty to an offence of aggravated burglary. They appeared for trial on 5th November 2003, when further counts were added to the indictment, namely assault occasioning actual bodily harm against both of them and criminal damage against the son. They both entered pleas of not guilty and the trial started, but the following day the jury had to be discharged. The case was re-listed and the re-trial started on 17th March 2004.
4. On 19th March both the offenders were convicted of aggravated burglary, and the son, in addition, was convicted of criminal damage.
5. On 16th April 2004 both were sentenced by His Honour Judge Hamilton, before whom the trial had been conducted, at Derby Crown Court. The father was sentenced to four years' imprisonment and the son to two years' detention in a young offender institution for the offence of aggravated burglary. A concurrent sentence of one month was passed on the son in relation to criminal damage. Both the offenders were made the subject of an Anti-social Behaviour Order to run for a period of five years from the date of their respective releases.
6. In summary, the two offenders, together with a third person, went, in the early hours of the morning, to the house of a man who had previously had an affair with the father's wife. The son was armed with a baseball bat, and once the victim opened his door the offenders attacked him, kicking and punching him as well as hitting him with the bat. Windows and personal property in the house were damaged. As a result, the victim sustained a badly broken nose and extensive bruising, in particular of the face, depicted in the photographs which are before us, and, as an immediate consequence of the attack upon him, the victim moved away to live in a different area.
7. The attack occurred at about 5.30 in the morning of Sunday 26th January 2003. Mr Black, the victim as he became, was making himself an early morning cup of tea. There was a knock at the front door, he answered it. There was the son holding the baseball bat and the father standing with him. They were accompanied by a woman, who was the father's daughter and the son's sister. The son swung his baseball bat at shoulder height with both hands at the victim, who put up his hand to deflect the blow and his hand caught the bat. A second swing collided with his left ribs and he fell back into the hallway. The father then joined in with the words "I'll have you now" and punched the victim several times to the face. He fell to the floor.
8. There were then repeated kicks to the head and body by the father whilst the victim was on the floor, and two further blows from the son with the baseball bat, which landed on the victim's body rather than his head.
9. The son then went into the house and proceeded to use the baseball bat to smash the windows and furniture to the tune of some £450 worth of damage. Father, meanwhile, continued kicking the victim in the face, neck and chest. Father and son then left.
10. A neighbour had been awakened by the noise. She saw a group of people leaving the house and getting into a car. She saw one of them throw something which caused glass to break. The neighbour heard the female member of the group shout "What about my stuff?".
11. Father and son were arrested later the same day. Both denied going to the victim's home or taking part in any assault upon him. However, traces of the victim's blood were found on the father's trainers.
12. The injuries to the unfortunate Mr Black consisted of swelling of the left side of his back, his arm and his hand and tenderness and bruising in those areas. His face was swollen beyond recognition, the nose so badly injured that it was not possible immediately to x-ray it. X-rays of other parts of the body revealed no factures, but, by 11th February, fractures of the nasal bone and nasal septum had been found by a consultant. The nose was described as "completely smashed and markedly dislocated". Manipulation was undertaken under local anaesthetic and subsequently, in September, surgical resection of the septum was required because of the difficulties in breathing which the victim was continuing to experience. It seems likely that those facial injuries were caused by the father with his feet and fists, rather than by the son with the baseball bat.
13. The statement by the victim describing the impact of these events upon him indicated that he had had to be re-housed from the home where he had previously lived for 40 years.
14. On behalf of the Attorney General, Miss Bennett-Jenkins draws attention to a number of features aggravating this offence in relation to both offenders. First, it was an unprovoked attack on a man in his own home. Secondly, it occurred in the hours of darkness. Thirdly, the carrying of the weapon indicated premeditation. Fourthly, the weapon was repeatedly used. Fifthly, there were kicks and punches delivered to the head and other vulnerable parts of the body. Sixthly, serious injury was caused. Seventhly, there was gratuitous damage to the victim's property, which must have increased his terror. Next, there was more than one offender, neither of whom exhibited any remorse, and there had been a profound effect upon the victim. The final aggravating feature, so far as the father is concerned, is that it was he who had influenced his son to do that which he did.
15. So far as the father is concerned, Miss Bennett-Jenkins submits that there are no mitigating features. So far as the son is concerned, there are three: first, his youth; secondly, the fact that he has never previously lost his liberty; and, thirdly, that he was acting under the influence of his father.
16. Miss Bennett-Jenkins draws attention to one authority, Attorney General's Reference Nos 43 and 44 of 2002 (Broughton and Gadd) [2003] 1 Cr App R (S) 364, where sentences were characterised by the court in that case as having been unduly lenient. In the course of giving the judgment of the court, at paragraph 20, the late Kay LJ said:

"... the least sentence that could properly be passed in relation to it was of the order of eight years' imprisonment and sentences higher than that would not be considered by this Court to be manifestly excessive."

The "it" there referred to was the aggravated burglary and wounding with intent in that case, which bear features of similarity to and dissimilarity from the present case.

17. The submission which is made on behalf of the Attorney is that the sentences of four years' imprisonment and two years' detention in a young offender institution failed adequately to reflect the gravity of this offence with the aggravating features described and public concern about offences of this nature.
18. On behalf of the father, Miss Gerry concedes that the sentence passed was lenient, but not, she submits, unduly so. She draws attention to the fact that this was an experienced Crown Court judge. She points out that it was the son, rather than the father, who carried the weapon which they took with them, but it was the father's behaviour, as we have described it, which caused the more serious of the injuries.
19. She submitted that the range appropriate in the present case was perhaps more of the order of six to eight years than the level of sentence indicated by Kay LJ. She sought sustenance for that proposition from a number of authorities, of which the most relevant is perhaps Attorney General's Reference No 104 of 2002 ("B") Court of Appeal Criminal Division, unreported, of 24th March 2003. Miss Gerry submitted that the offence of aggravated burglary committed in that case was more serious than the present case, and she points out that the sentence of four years which had been passed in the court below was increased to seven years. It is, in consequence, her submission that the appropriate sentence in the present case should be rather less than that suggested by Kay LJ. It is to be noted that in B the offender was only 17 years of age when he committed the offence, and it is further to be noted that he was acting on his own.
20. On behalf of the son, Mr Barry concedes that the sentence which was passed was, as he described it, mercifully lenient. He draws attention to three mitigating features: the youth of the offender, just 17 at the time, as we have said; the fact that he has never previously been sentenced to custody; and, the fact that he was acting under the influence of his father. Mr Barry points out that the judge, during the course of the, fortunately, quite short trial, had the advantage of observing father and son and assessing the relationship between the two of them. Mr Barry submits that the son was a rather immature and weak-willed young man compared with his rather domineering father.
21. Mr Barry submits that the ratio between the two sentences passed on father and son, namely that the son's sentence was half that of the father's, was an appropriate one.
22. Finally, Mr Barry points out that, in the authority relied on by Miss Bennett-Jenkins, one of the features of the case was a threat to kill, which is not present in this case.
23. To all of those matters we have regard. As it seems to us, the circumstances of this offence and the aggravating features which it had, so far as the father is concerned, are such as to have required in the court below a sentence of at least eight years' imprisonment. It follows that the sentence of four years passed was unduly lenient. Taking into account double jeopardy, that is to say that the offender is being sentenced a second time, we quash the sentence of eight years' imprisonment on the father and substitute for it a sentence of seven years' imprisonment. Also, in relation to the Anti-social Behaviour Order, bearing in mind the increased sentence which we have now passed, we reduce the period of that from five years to three years, the running of that period to begin when, in due course, the father is released from custody.
24. So far as the son is concerned, we would have expected in relation to him a sentence of at least four years' detention in a young offender institution in the court below. It follows that the sentence on him was likewise unduly lenient. Taking into account double jeopardy, we quash the sentence of two years' detention in a young offender institution and we substitute for it a sentence of three and a half years' detention in a young offender institution. Also, in relation to the Anti-social Behaviour Order we quash the period of five years and substitute a period of three years, which will start to run from the date on which the son is released.