Neutral Citation Number: [2008] EWCA Crim 3050
No. 2008/05142/A7, 2008/05301/A7,  2008/05302/A7, 2008/05303/A7
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  28  November  2008

B e f o r e:

MRS  JUSTICE  RAFFERTY  DBE

and

MR  JUSTICE  MADDISON

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R E G I N A

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CARL  ALVIN  DAVIES
LEON  JAMES  CULLEN
STEVEN  CULLEN
GARRY  ANDREW  DAVIES
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Mr D Elias appeared on behalf of the Appellant Carl Davies

Miss S Waters appeared on behalf of the Appellants
Leon Cullen, Steven Cullen and Garry Davies
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J U D G M E N T

Friday  28  November  2008

MRS JUSTICE RAFFERTY: 
1.  On 4 August 2008, in the Crown Court sitting at Worcester, Carl Davies (aged 48), Leon Cullen (aged 21), Steven Cullen (aged 45) and Gary Davies (aged 44) pleaded guilty to violent disorder and on 8 September were sentenced in each case to 18 months' imprisonment.  A co-accused, Flynn, need not trouble us.  By leave of the Single Judge they appeal against sentence.

2.  On 19 May 2007, Cup Final day, they were part of a significantly larger group of men who went from Cardiff to Worcester on a stag party day trip.  We cannot help but think that this was Cardiff's gain.  Unsurprisingly, alcohol was not in short supply.  Carl Davies, Gary Davies and Steven Cullen tried to enter Lloyds Bar in the town centre of Worcester.  Within the bar there was already a part of the stag night celebratory ensemble which they desired to join.  The experienced door staff, thought differently and refused them entry.  To begin with the Appellants tried persuasion.  Turbulence began when Carl Davies struck one of the door staff, and he, Gary and Steven Cullen forced entry.  The result was violence on a not insignificant scale, both inside and outside Lloyds Bar.  It drew into its developing net a number, not just the Appellants and probably not just the larger celebratory party of which they formed part.  Certain it is that the fracas lasted up to half an hour.  Police were called.  Some weapons were used.  Door staff were punched, knocked to the ground and kicked.  Glasses were thrown, bottles were brandished and, as we shall see, in at least one case, used.

3.  All four Appellants entered accepted bases of plea.  Carl Davies explained that, keen to rejoin the larger party, he had pushed his way in and thrown punches at door staff.  His participation, measured at about 30 seconds, ended when a doorman with a police officer ejected him, the latter promptly arresting him.  He was aged 47 at the time, 48 at sentence.

4.  Gary Davies when a fight broke out was borne in on its tide.  In the foyer he swung several punches.  As he left, he was taken to the ground by a police officer and arrested.  He at no time held any weapon.  He progressed no further than the foyer, in which he had spent a very short period before his containment by the police.  His personal involvement lasted less than two minutes.

5.  Steven Cullen pushed his way inside, "scuffled" with door staff, went upstairs and was involved in another exchange with door staff.  He had never used or thrown a weapon or a chair.  He had kicked no one.  As he had been taken to the floor, he was bruised and wounded to his face, the injuries resulting significant.  He relied on the closed-circuit television to fortify that point.  

6.  Leon Cullen, inside the bar, realised that there was turbulence between part of his group and door staff.  He saw his father Steven on the floor, so far as Leon could see, surrounded by door staff assaulting him, so Leon hit one of the door staff over the head with a bottle and punched another man who may or may not have been an employee.  Leon then went upstairs and became involved in a further altercation with door staff at the top of the stairs.  He had been "ring-fenced" from the inception of violence and it was the sight of his father, surrounded, which prompted Leon's brief involvement.  

7.  All door staff were bruised or cut and one (Dixon) had to have stitches to damage to his ear.  The Crown was not able to attribute injury to any Appellant.

8.  Carl Davies, born on 24 March 1960, had limited previous involvement in the courts and was treated by the judge as of effective good character.  

9.  Leon Cullen was born on 21 April 1987.  He was of good character.

10.  Steven Cullen was born on 28 December 1962.  Although he had previous convictions (which included one for violence), they were old and the Judge once again treated him as of effective good character.

11.  Gary Davies, born on 2 October 1964, was of previous good character.

12.  A pre-sentence report on Carl Davies, remarking that he did not dispute the Crown's account (principally because he was so drunk he could not remember what had happened), suggested alcohol had impaired his thinking and his behaviour.

13.  For all Appellants, the risk of reconviction and harm was assessed as low.  Leon Cullen had seen his father attacked and thus became involved, but was extremely remorseful and accepted he had failed to think through the consequences.  He was not usually aggressive.  He had ceased taking alcohol.

14.  Steven Cullen felt the door staff had been abusive to the Appellants.  There had come a time when he was attacked by five of them.  Nevertheless, he took full responsibility for what he had done and was disgusted and ashamed.

15.  Gary Davies had punched a doorman twice and was ashamed of himself.  He accepted total responsibility and was extremely remorseful.  

16.  The Judge had a number of character references.  Sentencing them he said that whilst the impression might have been derived from accounts to the authors of the pre-sentence reports of a few individuals who had had too much to drink, becoming involved in a scuffle or an altercation.  It was far more serious.  One customer described an aggressive, purposeful and planned attack on the doormen, who themselves described the incident as the worst violence they had seen.  This latter comment, common in allegations of violence, should not have been opened or relied upon.  It could never have been tested in a trial, and is not made somehow acceptable because there has been a plea of guilty.  R v Rees [2006] 1 Cr App R(S) was binding upon the court's attitude.  Lord Woolf CJ there said that sentencing must reflect the seriousness of the particular incident, but also the effect of violent disorder on the public which may be caused real anxiety and distress.  It was not the individual conduct of one, but the nature of the offending as a whole -- the collective effect of the disorder -- which was significant.  The Judge said that when people drank excessively and their behaviour became out of character, the courts were obliged to send out a message about real dangers as a result.  He gave full credit for early pleas, accepted that others not in the dock had been involved and that quite some time had passed between offence and sentence.  All Appellants he took to be of good character.  He had read the reports, the references, and did not distinguish between any of the Appellants.

17.  Grounds of Appeal are for each that the sentence did not reflect sufficient credit for the guilty plea, the role set out in each basis of plea and accepted by the Crown, exemplary good character, supported by references in the case of Leon and Steven, the effective good character in respect of Carl and Gary Davies, that Leon had recently become a father, and that Steven had sustained significant facial injury.

18.  The Single Judge was troubled as to whether the Judge's notional starting point (27 months) was too high, given that accepted bases of plea show individual roles were limited.  The Crown conceded that the principal protagonist was not identified, that all these four appear to have a good employment record, none was workshy and none had previously lost his liberty.  He ordered pre-appeal reports from prison which show Carl Davies is doing well.  He is a model prisoner and has undertaken an Alcohol Awareness Course.  We are indebted, too, to the Probation Service who have spoken to his wife, Mrs Louise Davies, who says that Carl is a family man, unused to drinking in quantity.  She will welcome him back.  He has worked in one trade since aged 21 when he quit the Army.  He is now 48.  His boss wants him back; he is hard-working.

19.  The probation officer has visited Leon's mother, who wants him home.  His job remains open.  He remains remorseful.  There are no concerns about alcohol awareness.  He has undertaken the appropriate course. 

20.  Steven Cullen (45) will be welcomed back by Mrs Cullen and could return to his job as a builder.  In prison he has a good attitude and remains remorseful.

21.  Gary Davies remains ashamed and remorseful.  He has addressed his alcohol consumption.  His wife wants him back.  His employer is eager to see him return to work and has kept open his job. 

22.  These are very difficult sentencing exercises.  The Judge trod a careful and unimpugnable path, reminding himself properly of the words of Lord Woolf in Rees, assessing correctly the individual cases of all four, concluding, also correctly that distinguishing between them was without point.  He was astute to the need for the public to understand that the courts followed its anxiety, that it is not binge drinking which is the evil, but the consequences of binge drinking.  Gratuitous thuggery by men old enough to know better, and certainly old enough to control their sons, clearly troubled the Judge, and rightly.  What he did not have, but as a consequence of the views of the Single Judge this court does, is the intervening information.  Every court stands back and wonders whether expressions of shame and remorse, and assurances that a job remains open, are cosmetic and tailored to the passing of sentence.  The Court of Appeal is not in that position.  Because time has passed, it, as here, can be assured that the jobs were genuine and remain open, and can test whether the attitude of appropriate shame and remorse has endured.  One of the functions of this court is to assess the appropriate sentence today, and to that extent it is obliged to take into account information as to intervening progress.

23.  Of course custody was appropriate, but equipped as we now are, the justice of the case can be met by a term of imprisonment of nine months suspended for a period of 18 months.  With it there will go a requirement of unpaid work for 150 hours.

24.  Those decisions are intended to support the Judge in his view that custody is appropriate.  It is intended to support him in his view that the public is entitled to reassurance and that offences such as these will be deemed serious.  All these Appellants retain a sentence of imprisonment upon their records.  It is suspended as a result of the extra information this court has.

25.  To the limited extent that we have made plain, therefore, these appeals succeed. 

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