No. 2009/06550/A1
Neutral Citation Number: [2010] EWCA Crim 352
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Wednesday 10 February 2010

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  PENRY-DAVEY

and

MR  JUSTICE  IRWIN
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ATTORNEY GENERAL'S REFERENCE No. 102 of 2009
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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SIMEON  MARTIN
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Mr S Denison QC appeared on behalf of the Attorney General
Mr R W Twomlow appeared on behalf of the Offender
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J U D G M E N T
Wednesday  10  February  2010

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which she considers to be unduly lenient.  We grant leave.

2.  The offender is Simeon Martin.  He is aged 27.  He is a man of impeccable good character with many positive commendations.  On 11 November 2009, in the Crown Court at Cardiff, he was sentenced by the Recorder of Cardiff to five years' imprisonment for an offence of wounding with intent.

3.  The offender was charged on count 1 with attempted murder, and on count 2 with wounding with intent, contrary to section 18 of the Offences against the Person Act 1861.  Both charges arose out of the same incident which occurred in Cardiff in the early hours of Saturday 24 January 2009.  The offender pleaded not guilty to attempted murder but guilty to wounding with intent.  A jury was empanelled and a trial took place.  The jury found him not guilty of attempted murder.  Sentence for wounding with intent was adjourned pending the preparation of pre-sentence and psychiatric reports.  Thus it was on 11 November 2009 that he was sentenced to five years' imprisonment.

4.  In summary the facts were these.  In May 2008 the offender had been the victim of a knife crime.  He reported that he had been attacked by two Somali men, one of whom had stabbed him in the leg with a knife.  He needed hospital treatment.  The injuries were serious and created protracted problems for him.  No one was ever charged in relation to this incident. 

5.  Eighteen months or so later, in the early hours of Saturday 24 January 2009 the offender was in a nightclub.  He mistakenly thought that he recognised one of the two Somali men who had attacked him.  He was provided with a butterfly knife by an acquaintance.  He waited outside the club.  When the victim left the club, the offender ran up to him from behind with the open butterfly knife in his had and, without warning, stabbed him no less than twenty times before running away.  The victim suffered serious, life-threatening injuries.  He required emergency surgery to stem internal bleeding.  Fortunately, he received expert attention.  Although he survived, he has been left with permanent scars and psychological damage.

6.  The incident was captured by a CCTV camera.  We have studied the footage.  It clearly shows that the offender approached the victim from behind and immediately attacked him with the knife.  The attack was sustained long after the victim fell to the ground as a result of the attack.  The stabbing went on and on.

7.  The victim was 22 years old.  On the evening of Friday 23 January he went out with a friend.  There were no incidents in which he was involved.  As he left the nightclub and his friend went to telephone for a taxi, the victim saw some people he knew and started to chat to them.  The offender ran up to him from behind.  The victim was taken by surprise and was totally defenceless.  The attack continued after he had fallen to the ground.  One of the features shown in the CCTV footage, indicative of the nature of the violence, was that the offender stamped on the victim as he lay on the ground and then continue to stab him.  The offender ran off and made his way home.  The victim briefly stood up but then collapsed.  He received help from members of the public.  It was an attack committed in the early hours of the morning in a part of Cardiff City Centre where a number of young people can be seen in the vicinity of the crime.

8.  The victim was taken to hospital.  He was in considerable pain and bleeding profusely.  He had lost over 3 pints of blood.  He needed more than 3 litres of fluid replacement.  About 1 litre of blood was drained from the chest cavity which had been penetrated by one of the stab wounds.  There was a major injury, at least 4 inches deep, to the left upper side of his stomach.  There was a significant cut to his lung, which had to be sutured.  There was also a cut to his diaphragm.  He had sustained stab wounds to the right side of his face, the right side of his throat, the left upper stomach area, the central area of the breast bone, the right area of the breast bone, two stab wounds to the right side of his sternum, the mid-zone close to the nipple, his right upper arm, his left upper arm, his left forearm, his left leg and his right loin.  They were life-threatening injuries.

9.  In a victim impact statement made in November 2009 (almost a year after the incident) the victim described the effect of the attack on him.  He has scars on his body, which are a constant, daily reminder.  He has lost his self-confidence.  He rarely goes out.  He has sought medical assistance to cope with his depression.  He has had difficulty sleeping because of nightmares about the attack.  Physically he is unable to walk far without losing his breath.  He is unable to exercise and so he has put on weight.  His right arm feels week.  Potential employers are unwilling to employ him because of his injuries and because it looks as though, having been involved in such an incident (albeit entirely innocently), he is "trouble".

10.  The offender was arrested at his home by armed police officers at 8.45 the same morning.  He was cautioned.  His response was to say that he had been stabbed himself six months ago.  

11.  Investigations into the offender's response revealed that he had in fact been attacked by two men, one of whom had produced a knife and stabbed him.  Officers had attended the scene and had seen the injuries which he had sustained.  Evidence from the hospital indicated that he had been treated for such injuries.  In his witness statement made in May 2008 the offender said that he did not know the people who had attacked him and he did not know whether he would recognise either of his attackers again.  No one was ever charged or arrested in relation to this incident.

12.  The fact that the offender had been the victim of a stabbing seems to have played a considerable part in the sentencing decision which faced the Recorder of Cardiff.  

13.  The victim always denied that he had been involved in the attack on the offender.  There is not the slightest suggestion in any of the evidence that he had.  It is apparent that he was an entirely innocent victim of mistaken identity by the offender.  

14.  In his trial for attempted murder, the offender gave evidence to the jury about the effect on him when he was the victim of the stabbing incident.  He thought at the time that the attackers were trying to kill him.  For several months afterwards he wore a stab-proof vest to protect his vital organs.  Apart from his evidence to the jury, we have a report from Dr Janis Hillier, a Consultant Psychiatrist with special interest in forensic psychiatry, in which she sets out the offender's description of the attack upon him and how he reported nightmares relating to it, with regular flash-backs which were often associated with panic attacks.  The assault had had a significant effect on his life.  One consequence of the way he had responded to it was the breakdown of a long-term relationship.

15.  In his evidence the offender told the jury that by January 2009 he was able to go out on his own without the vest.  He had gone out on the evening of Friday 23 January.  He went to a number of bars and clubs in a happy mood, celebrating the recent wedding of his best friend.  While he was at the nightclub he saw the victim.  He said that he instantly recognised him as the man who had stabbed him.  He thought of him as "pure scum".  He decided to beat him up.  He pointed out the man, whose name he did not know, to an acquaintance who said words to the effect, "What if he's got a knife again?"  The acquaintance then handed the offender a glove which had a butterfly knife inside it.  He went outside and he waited for the victim to leave the nightclub.  It is clear that the butterfly knife was kept open as the offender lay in wait.  When the victim left the club, the offender ran up to him.  He did not know why, he just used the knife.  He grabbed him around the neck with his left arm and he "just used it".  He saw a "red mist".  He then ran away and went home.  He threw the glove and the knife into the river. 

16.  The trial took four days.  The Recorder of Cardiff is a senior and experienced judge.  He considered the Sentencing Guidelines Council's Definitive Guidelines on Offences against the Person.  He decided that, although the victim had clearly suffered life-threatening injuries, this was not a case of premeditated wounding involving the use of a weapon acquired prior to the offence and carried to the scene with specific intent to injure.  He recognised the seriousness of the offence and how the sequel of the attack of which the offender had been the victim was "macabre, disturbing and horrifying".  He described the offender's response to his mistake in identifying the victim of the attack on him as one of those who had attacked him as "highly irrational".  He rightly acknowledged that the offender had never denied responsibility for the injuries and that he intended really serious harm.  The judge gave full credit for the early plea to the only offence for which the offender fell to be sentenced.  He examined all the evidence, including the offender's positive good character, and came to the conclusions which have led to this Reference.  He said that had the conviction followed a trial, the sentence would have been in the order of seven or eight years but, giving the offender credit for his guilty plea, the sentence was reduced to five years' imprisonment.

17.  On behalf of the offender we are urged to bear in mind, and we do, that this was a sentence imposed by a trial judge who had had the opportunity to see the offender give his evidence and stand his trial and that the judge was well able to form his own view about the true extent of the offender's culpability in all the circumstances, not least the earlier attack of which he was the victim.  It is accepted that the sentence was a lenient sentence at the lower end of any appropriate scale, but argued that the sentence was entirely appropriate and could not properly be described as unduly lenient.

18.  We do not accept that submission.  There is a good deal of mitigation here.  The offender was a young man of previous positive good character.  It is plain that he expressed genuine remorse for what he did.  Any sentence on him would be his first custodial sentence.  He had pleaded guilty.  The trigger for this incident was a misconception that he had seen a man who was one of the two who had subjected him to a knife attack.  

19.  On the other hand, it is plain that this was a revenge attack.  The attack of which he had been the victim had taken place many months earlier and, as with so many revenge attacks, the victim had not been part of any incident involving the offender.  The judge suggested that it was a spontaneous attack.  To an extent it was.  The offender did not go out that night into the city centre carrying a knife.  However, when an acquaintance provided him with a knife he took it.  He held it open, and he waited.  He waited for the moment when his intended victim -- because by now it was intended that he would be a victim -- was vulnerable to his attack.  We are prepared to accept, as no doubt the judge was, that if it had not been for the earlier attack, the offender would not have acted so out of character.  That is as far as it can go.  As the CCTV footage shows, this was a horrific attack on a defenceless man in the early hours of the morning in a city centre by a man wielding a knife with intent to do really serious harm.  He inflicted life-threatening injuries.  There are no less than twenty separate stab wounds inflicted to vulnerable parts of the body, many of them after the victim was already helpless.  The CCTV images are chilling in their effect.  The offence would have been bad enough if the attack on the defenceless victim had been by a man with no weapon in his right hand, but with the use of a clenched fist with full force.  Because he had a knife, the injuries which followed were indeed life-threatening.  The victim was lucky to survive.  He survived because of high-quality medical attention.  But even the doctors with their expertise have been unable to prevent the fact that the victim is permanently damaged as a result of the attack.

20.  We have considered where, within the current sentencing guidelines, an appropriate starting point should be found.  This case classically demonstrates that all the significant features of a sentencing decision cannot be compartmentalised.  This case on one view can be treated at one level or the other: if it is at the highest level, there is mitigation downwards; at a lower level, there are aggravating features upwards.  Either way the end result is a very heavy sentence.  

21.  Five years' imprisonment was not an appropriate sentence in this case.  In our judgment, making every allowance for the features in mitigation, the appropriate sentence for this attack which produced these injuries and has left this damage is eight years' imprisonment.  The sentence will be increased accordingly.