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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 >> Delaney & Ors, R. v [2008] EWCA Crim 1419 (03 June 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1419.html Cite as: [2008] EWCA Crim 1419

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		3 June 2008

Tuesday 3 June 2008

LORD JUSTICE MOORE-BICK:

1. The appellants, Luke Delaney, Matthew Burch, Jack Harris and Ergys Mekshi were charged on an indictment containing four counts. Count 1 charged all four of them with wounding Mr Imran Gaba with intent to do him grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. Counts 2, 3 and 4 charged Burch, Harris and Mekshi respectively with assaulting Mr Gaba occasioning actual bodily harm, contrary to section 47 of the same Act. On 24 August 2007, at the Crown Court at Inner London, Delaney pleaded guilty to wounding with intent to do grievous bodily harm as alleged in count 1. Burch, Harris and Mekshi pleaded guilty to the alternative offence of assault occasioning actual bodily harm, as alleged in counts 2, 3 and 4. The prosecution declined to accept those pleas and so the matter went to trial.
2. On 14 December 2007, Harris was acquitted by a jury on count 1, but both Burch and Mekshi were convicted.
3. On 25 January 2008 the appellants were sentenced by His Honour Judge Burn as follows: Delaney was sentenced in respect of wounding with intent to detention for public protection with a minimum term of five years less 214 days spent in custody on remand; Burch was sentenced in respect of wounding with intent to six years' detention less 39 days spent in custody on remand; Harris was sentenced in respect of the offence of assault occasioning actual bodily harm to two years' detention, less 39 days spent in custody on remand; and Mekshi was sentenced in respect of the wounding with intent to detention for public protection with a minimum term of six years less 44 days spent on remand.
4. Each of the appellants now appeals against sentence by leave of the single judge.
5. The convictions arose out of an horrendous attack by these four appellants on a lone victim, Mr Gaba, at about 3.30 am on Sunday 24 June 2007. Mr Gaba, then aged 24, had been unable to sleep and had decided to go on foot to his local mosque. On his way he encountered a sizeable group of young people, including the appellants, walking towards him strung out along the pavement. They had been to a party and had had a certain amount to drink. At the front of the group was Burch with some others. They were followed by some girls. Then came Mekshi and another man, and finally Harris and Delaney. Delaney was carrying a beer bottle.
6. Mr Gaba made his way to the side of the kerb so as not to be in their way. The first members of the appellants' group, including Burch and Mekshi, passed him without incident. As he passed Harris and Delaney, one of them made some mildly offensive comment to him. Mr Gaba carried on walking but, being worried that he might be attacked from behind, decided to stop and turn to face them. Harris, Delaney and Mekshi came towards him and began to encircle him. Delaney rolled up his sleeves, transferred the bottle from his left hand to his right and a moment later struck Gaba in the face with it. Gaba felt a huge blow on the left side of his face. His glasses flew off. He felt blood on his face and severe pain. It appears that the blow had been delivered with sufficient force to break the bottle. A shard of glass was later found in Mr Gaba's mouth and he lost a tooth. Harris then attacked him from behind, punching or pushing him to the ground. Mekshi kicked him as he struggled to sit up. At that point the group moved away.
7. The attack, severe as it was, might have ended at that point, but worse was yet to come. As Mr Gaba stumbled around, dazed and defenceless, Burch who had been some way ahead came back along the road and circled round behind him. Mekshi also returned to the attack, encouraging Delaney and others to join in. As they surrounded Mr Gaba, Burch attacked him from behind and forced him down against the front of a shop at which point Delaney, who had run back to join the group, struck him in the face with the broken bottle causing serious injury and profuse bleeding. At that point all the attackers left, Mekshi having waited for a moment apparently to assess the outcome of the attack.
8. Mr Gaba was left bleeding heavily, but he managed to call the emergency services on his mobile telephone and as a result was taken to hospital. He had a deep facial laceration from the corner of his eye, down the corner of his nose on the left side. There was a penetrating injury to his left eye and he had two deep lacerations to his cheek. His left eye had been transected by trauma and there were several full-thickness lacerations to the cornea with a total collapse of the globe. He had extensive surgery, but as a result of the injury he has been left effectively blind in that eye. He had a fracture to his nose with a large penetrating injury through its left side. The wound to his cheek was described as deep, extending to the full thickness.
9. The judge considered the position of each of the appellants separately. In Delaney's case he took the view that the nature of the attack itself, involving as it did two separate blows to the face with a bottle – on the second occasion a bottle that had already been broken – was sufficient to demonstrate that he was capable of dreadful acts and that he therefore posed a significant risk to members of the public of causing serious harm in the future. Having reached that conclusion, he considered both a life sentence and an extended sentence of detention before concluding that detention for public protection was the appropriate disposal. In setting the minimum term of five years, he took as his starting point a determinate sentence of 15 years' detention, which he reduced to ten years to allow for the appellant's age (he was only 16 at the time of the offence) and his early plea. Although he gave the appellant credit for his plea, he gave him reduced credit in the light of the strength of the evidence against him, the whole incident have been captured on CCTV.
10. The judge also considered, for broadly similar reasons, that Mekshi presented a significant risk of causing serious harm in the future. He therefore passed a sentence of detention for public protection, again taking as his starting point a sentence of 15 years' detention, which he reduced to 12 years to take account of the appellant's age (he was 18 at the date of sentence).
11. After some careful thought the judge reached the conclusion that Burch did not meet the criteria of dangerousness contained in the Criminal Justice Act 2003. He had not taken part in the first stage of the attack, but had punched Mr Gaba at the beginning of the second stage, knowing that Delaney intended to use the bottle against him when he was down.
12. Harris fell into a different category, having pleaded guilty at an early stage to assault occasioning actual bodily harm and having been acquitted of wounding with intent. The judge noted, however, that he had struck Mr Gaba a hard and violent blow, having positioned himself to enable him to attack him from behind. The judge gave him credit for his age, but only minimal credit for his plea in the light of the CCTV footage which provided clear evidence of his involvement in the attack.
13. Before moving to consider each of the appellant's grounds of appeal, we think it worth drawing attention to the fact that by the time he came to pass sentence the judge had had the benefit of hearing (and in the case of the CCTV recording seeing) the full extent of the evidence of what occurred that night. We have also had the opportunity of seeing the CCTV recording, but nonetheless the judge was undoubtedly better placed than we are to assess its character and the part played by each of the appellants, having heard them and others give evidence at the trial. That is particularly significant in the case of those appellants who seek to challenge the judge's assessment of the danger that they pose to the public.
14. This was on any view an appalling attack by a group of young men on a single person out alone at night and one which called for a very substantial sentence. Mr Gaba had offered them no insult of any kind, express or implied, nor had he behaved in any other way that might have been regarded as provocative. It is of the highest importance that citizens should be able to go about their business at any hour of the day or night in safety and without being exposed to gratuitous and mindless violence of the kind inflicted in this case. Accordingly, the courts must impose heavy sentences on those who regard violence as a form of recreation.
15. Delaney's grounds of appeal are three. First, that having found that he was dangerous, the judge should have passed an extended sentence of detention under section 228 of the Criminal Justice Act 2003 rather than a sentence of detention for public protection under section 226. Second, the judge's starting point of 15 years for an adult offender following conviction was too high. Third, the judge failed to give sufficient credit for his guilty plea.
16. The Single Judge gave leave to appeal on the first and second of these grounds only. He refused leave on the third ground, but an application has been made to renew that ground to this court.
17. As to the first of these grounds, the main thrust of the argument is that an extended sentence of detention is appropriate in this case because, while remanded in custody, the appellant has demonstrated a willingness to take advantage of the courses designed to promote his rehabilitation and has therefore given grounds for thinking that he will mature and change sufficiently to present a manageable risk on licence at the end of the finite custodial term. We have the benefit of further reports made since he began his sentence which, it is said, further support that conclusion.
18. The appellant, who has no previous convictions, is certainly very young and can be expected to develop considerably over the next few years. However, it is impossible to ignore the nature of this offence, which was a matter that clearly carried some considerable weight with the judge. It is clear that not only did the appellant make an unprovoked attack on his victim, he did so using a weapon in the form of a bottle and with such force as to cause it to break. This was something more than a casual street fight; it suggests that he obtained a degree of satisfaction from causing injury by the use of a substantial degree of violence. The matter does not end there, however, because he also demonstrated a willingness to make a second attack by pushing the broken bottle into the face of his then defenceless victim. That causes us great concern because it suggests that he gained a degree of satisfaction, if not pleasure, from inflicting the dreadful injuries that would inevitably follow from such an act.
19. The judge considered whether an extended sentence would be appropriate in Delaney's case and decided that it would not. In our view he was right to do so. It is right to say that reports on the appellant show that he has so far responded well to the opportunities available to him in custody and there is certainly a clear promise of improvement, but we do not consider that they provide sufficient assurance that it will be possible to manage safely the risk that he poses to the public by the time that he reaches the end of the custodial period of an extended sentence. If, however, the Parole Board is satisfied that he has matured to that extent at the equivalent stage of a sentence of detention for public protection, it will, of course, order his release.
20. When fixing the minimum period to be served in custody the judge took as his starting point a determinate sentence of fifteen years' imprisonment. That is a very substantial custodial sentence, but the offence displayed many aggravating features: it was entirely unprovoked; it involved an attack by a group of men on a single victim; it was committed at night and in the street; it involved the use of a weapon; it was sustained and, in the view of the judge, premeditated (albeit over a relatively short period of time); and the injuries sustained by the victim were very serious. An offence of that kind must inevitably attract a substantial sentence. Nonetheless, in our view a starting point of fifteen years was too high. The Guidelines on sentencing for Assaults and other Offences against the Person published by the Sentencing Guidelines Council in February 2008 (and so not available to the judge) suggest that for an offence of this kind, which displayed the aggravating features to which we have referred, a sentence of ten to twelve years' imprisonment following conviction would be appropriate.
21. Having reduced his starting point of fifteen years to twelve years to allow for the appellant's age, the judge gave him further credit of two years in respect of his plea. He did not give him a full one-third credit because he considered that the evidence against him (in particular the CCTV recording) was so strong that it made the charge almost incontestable.
22. We have seen the CCTV footage and understand why the judge took that view: the appellant can be seen quite clearly smashing the bottle into the face of his victim on each occasion. The Sentencing Guidelines Council's Guidelines on Reduction of Sentence for Guilty Plea recognise that there may be cases in which the normal one-third discount for a guilty plea will not be appropriate because of the strength of the evidence against the defendant. Paragraph 5.4 states, however:

"Where a court is satisfied that a lower reduction should be given for this reason, a recommended reduction of 20% is likely to be appropriate where the guilty plea was indicated at the first reasonable opportunity."

23. The complaint made in this case is that two years' reduction on twelve falls short of the recommended 20% and that the judge failed to explain why he did not allow the recommended reduction in full. Since we consider that the judge took too high a starting point, this ceases to be relevant as a separate ground of appeal, but we think it worth making the point that sentencing cannot be reduced to a matter of mathematics, as Mr Nathan QC, who appeared for the appellant, accepted. Paragraph 5.4 contains a guideline, but it was for the judge to decide how much credit should be given having regard to the particular circumstances of this case. It might have been better, however, if he had recognised that the amount of credit he was minded to give fell just outside the Guidelines and had stated in terms why he nonetheless considered it sufficient.
24. Taking as our starting point a determinate sentence of twelve years' detention, and allowing credit of two years for the appellant's age and good character, and a further two years in addition for his plea, we consider that the appropriate determinate sentence in this case would be one of eight years' detention. Accordingly, we quash the minimum period set by the judge and substitute for it a minimum period of four years' detention, less the period of 214 days spent by the appellant in custody while on remand.
25. The appellant Mekshi put forward several grounds of appeal. The single judge refused leave in respect of them all, save for that relating to the starting point taken by the judge when setting the minimum period in his case. Nonetheless, counsel has addressed submissions to us which also bear on the question whether an indeterminate sentence was required in his case and on whether there may be objectionable disparity between the sentence passed on him and that passed on Delaney.
26. For the reasons given earlier we accept that the starting point taken by the judge was too high, even for an offence as grave as this. We wish to make it clear, however, that we do not accept the submission that the injuries suffered by Mr Gaba were anything other than very grave, both physically and psychologically. We have considered whether an extended sentence would meet the requirements of the case but, as in the case of Delaney, the information available to us does not give us confidence that it will be possible to manage safely the risk this appellant poses to the public by the time he reaches the end of the custodial period of an extended sentence. The appellant could not claim credit for a guilty plea, but was entitled to a significant reduction in respect of his age and good character. Although he did not strike the blow which caused the serious injuries, the judge was satisfied that he had actively encouraged Delaney and the others to become involved in the second stage of the attack, knowing that Delaney was still holding, and therefore was liable to make use of, the broken bottle. There is little merit, therefore, in the submission that he played a significantly less culpable part in the attack as a whole.
27. Taking as our starting point a determinate sentence of twelve years and giving two years credit for his age and character, we are satisfied that the minimum period should be reduced from six years to five years, less the period of 44 days spent in custody on remand.
28. The sole ground of appeal in the case of Burch is that the sentence of six years' detention is simply too long having regard to the appellant's age and character and his particular role in the offence. The Single Judge expressed the view that there was no merit at all in the argument that this appellant played a less culpable role in the offence than Delaney or Mekshi, but he gave the appellant leave to appeal to enable him to argue that the judge's starting point was too high.
29. When passing sentence the judge did not explain how he had arrived at a sentence of six years' detention in the case of this appellant, apart from observing that he had only been involved in the second stage of the attack. Despite the observations of the Single Judge, we consider that the sentencing judge must have regarded this appellant's conduct as less culpable than that of Delaney and Mekshi, and indeed significantly so, since the sentence he imposed on him was considerably less severe.
30. In a succinct submission Mr Henderson argued that, since the judge took too high a starting point when sentencing the other appellants, it was appropriate to reduce the sentence passed on his client to reflect that fact. Although the judge did not say so, we think he clearly had regard to the sentences passed on the other appellants when determining the sentence to be passed on this appellant. It is unnecessary to reiterate the features of this offence that make it so serious. Nonetheless, for the reasons we have given we think there is force in the argument that the judge took an inappropriate starting point and that the sentence should be reduced to reflect that fact. The appellant is not entitled to credit for a plea of guilty. We shall quash the sentence of six years' detention and substitute for it a sentence of five years' detention, less the period of 39 days spent in custody on remand.
31. The judge sentenced Harris to two years' detention, purportedly in the exercise of his powers under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. That was an unlawful sentence however because section 91 applies to a limited class of offences which does not include assault occasioning actual bodily harm. The sentence must therefore be quashed and we must consider the matter afresh.
32. The appellant was only 17 at the time of the offence and any penalty we impose must reflect that fact. We have had our attention drawn to the relevant Guidelines published by the Sentencing Guidelines Council and have them in mind. The Guidelines of course are directed to the case of a first time adult offender convicted after trial and appear to assume a single assault by one person on one victim. Counsel submitted on behalf of this appellant that, because a separate count was added to the indictment at the end of the prosecution case charging the appellant alone with this offence, his actions are to be viewed as if wholly isolated from what was going on around him. On that basis he argued that, taking into account the credit due in respect of his age and the fact that he spent some five-and-a-half months under curfew while on remand, the offence could properly be met by a non-custodial sentence.
33. We do not accept that submission. The fact is that this assault was committed in the context of a serious attack by four young men on a single victim. The appellant had seen Delaney strike the victim in the face with great force (although we must assume that he was unaware of his use of the bottle) and immediately proceeded to strike him again from behind with sufficient force to send him to the ground. It is impossible to ignore the circumstances in which the assault was committed against a victim whom he knew was by then probably in very great pain and in a very vulnerable condition. In our view that is a serious aggravating feature.
34. In our judgment the judge was right to conclude that the offence was sufficiently serious to pass the custody threshold and so to call for a Detention and Training Order. The question is for what period. The appellant is entitled to credit for his age and also to some credit for his plea. We must also take into account the fact that he spent 39 days in custody on remand. He has expressed remorse for his conduct, both at the time of interview and subsequently. He is not of wholly unblemished character, but has no previous convictions for offences of violence.
35. Taking into account all these factors we consider that the appropriate sentence is his case is a 12-month Detention and Training Order. We therefore quash the sentence of two years' detention and substitute for it a 12-month Detention and Training Order.
36. To that extent all these appeals are allowed. The time that the judge directed should count in respect of all the sentences of detention will continue to count.

MR NATHAN: Would your Lordships kindly consider an application for costs?

LORD JUSTICE MOORE-BICK: Yes.

MR NATHAN: Mr Delaney's family have obviously had to instruct me privately and I would ask for an order for costs out of central funds?

LORD JUSTICE MOORE-BICK: Yes, Mr Nathan, we will make a defendant's costs order.