No: 200702325 A1 
Neutral Citation Number: [2007] EWCA Crim 1407
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 25 May 2007
 
B E F O R E:

LORD JUSTICE HUGHES 

MR JUSTICE SAUNDERS 
 
SIR JOHN BLOFELD 

- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 55 OF 2007    
 
- - - - - - -
 
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -

MR R COLOVER appeared on behalf of the ATTORNEY GENERAL
MISS B CHEEMA appeared on behalf of the OFFENDER
 
- - - - - - -
J U D G M E N T 

1.	LORD JUSTICE HUGHES:  Her Majesty's Solicitor General seeks the leave of the court to refer under section 36 of the Criminal Justice Act 1988 a sentence of two years' imprisonment passed upon a late plea of guilty to the offence of attempted wounding with intent.  We give leave.  
2.	The defendant was 41 at the time.  He had long-standing emotional and psychological problems, including poor anger control.  Over the years he had turned to alcohol as a coping mechanism, unsuitable as it was, which has in turn exacerbated his inability to control his anger.  He had become clinically dependent upon alcohol and had been in that condition probably since his middle or late teens.  He had made various attempts over the years to address it.  Some of them had been persisted in, others were much more half-hearted.  It was a case in which he was unaware of the problem and he had not, as some people do, simply abandoned himself to his alcoholism.  In the circumstances of that background it is rather to his credit that he has practically no previous convictions.  He had one offence only of criminal damage in 1994 and he had been cautioned for an offence of common assault in 1998.  In saying that, it is necessary to advert to the fact that there was or may have been some history of domestic violence when in drink, but the only proved incident was one which was part of the present story.  
3.	Before leaving the defendant and his condition, we should observe that both before and after the passing of the sentence upon him it is plain that in prison, and perforce dry, he has applied himself to various appropriate courses for those with his particular problem and he has pursued them sensibly and with a degree of success.  At present he remains in custody where the temptation is not present.  But it is to his credit, and we make it clear that it is to his credit, that he has co-operated in trying to get to the roots of the problem which has largely caused his present offending.
4.	On 3 September 2006 he assaulted his wife at home.  He pinned her against a wall and held her round the neck for long enough to make it difficult for her to breathe.  In due course he pleaded guilty to this assault upon her.  The following day he came home drunk.  He was aggressive and he began to take it out on household objects.  His wife feared a repetition of what had happened the night before and she was sufficiently worried to go to the local police station and report the incident to a young police officer on duty.
5.	At about 7.00 in the evening that young police officer duly arrived at the defendant's home in order to arrest him for the assault on his wife the previous day.  He was in full uniform and he walked up the garden path.  The defendant saw him coming.  He pulled back a blind at the front window and shouted aggressively at the policeman.  When the policeman knocked on the door the defendant opened it.  He tried subsequently to close it and when the officer tried to arrest him the defendant refused to go with him.  The defendant then picked up a kitchen knife with a 9 or 10-inch blade.  He held it at shoulder height in a downward stabbing attitude and he, with it thus in his hand, approached the policeman.  The policeman did his best to persuade him to put the knife down and he also sensibly walked gently backwards.  None of this had any effect on the defendant, who advanced on the policeman with the knife in the position that we have described.  He continued to do that even though the policeman discharged his spray gas as a deterrent and a distraction.  It achieved neither purpose.  The officer retreated down the garden and onto the street and was chased up the road by the defendant still brandishing the knife in the attitude mentioned.  
6.	The time came when the defendant abandoned the chase, but the police officer of course was left with a duty to arrest him, now reinforced.  Moreover, the defendant had passed an entirely innocent bystander in the road and turned aggressively on him also.  The officer was concerned for that person, as well as to achieve the arrest which he plainly had to undertake.  As he came close to the defendant the defendant turned to face him, again holding the knife up by his head.  There followed a further episode in which the defendant advanced on the policeman, came quite close to him, and continued to do it although the gas distraction spray was discharged again, and although the police officer was driven to take out his baton.  The defendant was deterred by none of this.  He swung the knife at the officer.  The officer deflected that blow but the defendant pulled the knife up to head height again and thrust it towards the left side of the policeman's stomach.  It went in sufficiently to enter the protective stab vest, which fortunately the policeman was wearing.  So there were two blows after a somewhat prolonged period of aggression, threatening and chasing, and it was only the stab vest which prevented serious injury.  
7.	The policeman was courageously assisted in detaining the defendant by a neighbour.  The defendant remained aggressive and violent up to and including the point when he was presented to the custody Sergeant in the police station, to whom he said, "I should have sliced him across the neck and then I would have been in for murder".  That was no doubt drink-fuelled bravado.  
8.	The plea of guilty was late.  The trial was shortly to be expected.  It was not, however, on the day of the trial, and we have been told by Mr Vass, and accept, that the reason for it was that a psychiatric report was awaited.  Knowing that there was a history of alcoholism it was thought appropriate to investigate its possible impact on the question of the formation of intent.  A section 18 wounding is the kind of offence to which voluntarily taken drink may be relevant on the question of intent.
9.	This, as the Attorney-General rightly submits, was an assault on a lone police officer trying to do his job.  It was an assault by an offender who armed himself with a knife and must have taken it to the doorway in order to do so.  It was persisted in for some time, despite every effort of the officer to deter it, and without any form of aggressive response from the officer himself.  That there was no serious injury was in the end the result of good fortune and of sensible precaution in the form of the officer's stab-proof vest.  The defendant undoubtedly regretted, after he had sobered up, what he had done, but the offence that he committed was a very serious one.  Attacks on police officers are of particular gravity.  Attacks on anybody with knives are likewise so.
10.	The sentence of two years suggests a starting point not higher than three years, assuming a trial.  Whilst it is no doubt of relevance that there were no significant previous convictions, that is simply well below the available bracket for an attack with a knife on a policeman, particularly in the persistent circumstances which we have described.  We have not the slightest doubt that it is sufficiently below the available bracket to warrant an appropriate reference, and for this court to say that this court should interfere.
11.	It seems to us that had this been a trial, the appropriate sentence would probably have been, at its lowest, of the order of six years, and even assuming in the defendant's favour that full credit for an apparently late plea could be given, it is very difficult to see how in the court below a sentence of less than four years could properly have been passed.  We are conscious that we are sentencing for a second time, and moreover at a time when the defendant would otherwise have had reason to think that he was approaching the end of his sentence.  In those circumstances we moderate that likely sentence below.  We quash the sentence of two years and we substitute one of three-and-a-half years.  The 212 days previously served will count for the purposes of section 240, as they did in the court below.