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Royal Courts of Justice

The Strand

London WC2

Tuesday 15 October 1996

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

MR JUSTICE BLOFELD

and

MR JUSTICE CRESSWELL

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ATTORNEY GENERAL'S REFERENCE No. 36 of 1996

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

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R E G I N A

- v -

JASON LEON JOHNSON

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Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A

Telephone No: 0171-831 3183

(Official Shorthand Writers to the Court)

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MR BRIAN ALTMAN appeared on behalf of the ATTORNEY GENERAL

MR CARL GASKELL appeared on behalf of THE OFFENDER

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J U D G M E N T

(As Approved by the Court )

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CROWN COPYRIGHT

THE LORD CHIEF JUSTICE: On 1 May 1996, in the Crown Court at Leicester, the offender Jason Leon Johnson pleaded guilty to an offence of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. Two days later, on 3 May, he was sentenced to 12 months' imprisonment. The Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer that sentence to this court for review on the ground that it is unduly lenient. We grant leave.

The offender is now 24 years of age. When first arraigned he pleaded not guilty, but on a second arraignment he pleaded guilty and was sentenced accordingly.

The offence arose out of an incident at the place where the offender was employed. It occurred at 2.45pm on Monday 26 June when the victim, Mr Farouk Sheikh, who was aged 29, and the offender were both working on the factory floor of Abbey Motor Care, Leicester. The victim was in one of the aisles in the factory with a new employee, stacking shelves. There is some evidence that the victim was a man with whom other of his work mates found it difficult to get on. Be that as it may, the offender pulled up in a forklift truck and put down some loaded pallets where the victim was working, making it difficult for the victim to continue with his work. The victim asked the offender to move the pallets. The offender said he would do it later. He walked off, leaving the truck so as to cause an obstruction. The victim attempted unsuccessfully to move the forklift truck and continued with his work of stacking the shelves as best he could.

Shortly after that incident the offender reappeared, carrying a 35cm crowbar in his right hand. After the initial altercation he had gone to fetch the crowbar. There was a further and more vociferous altercation in which both the victim and the offender began to shout at and argue with each other. The offender waved the crowbar about and verbally threatened the victim. It seems that at some point in the course of the exchange the victim insulted the offender in a way which particularly provoked him. At a certain point the argument stopped. The victim turned round to continue with his work, in order to do which he bent over or knelt down with his back or side towards the offender in order to reach a low shelf. The offender took advantage of that situation in order to strike the back of the victim's head with the crowbar, using (according to the Crown) both hands. He caused a severe bleeding wound and walked off. Thereafter he shouted that it was necessary to get an ambulance, admitted to his general manager that he had hit the victim and then returned to the scene to see if the victim was all right. He later observed to another employee that he had not intended to hit the victim so hard.

The victim unhappily had suffered injuries of the most serious kind. He was taken to Leicester Royal Infirmary where a skull X-ray showed a right parietal occipital fracture. The victim was deeply unconscious. He was intubated and ventilated and transferred to the Queen's Medical Centre, Nottingham, where a scan showed a large right extradural haematoma. Late that night an emergency craniotomy was performed. He remained in hospital for about eight days. When examined two months later he had complaints of poor memory, lack of sense of smell, fatigue and depression, but showed no signs of epilepsy. The consultant neurosurgeon in charge of his case stated that the head injury was "of a most serious nature with life- threatening propensities" and that "without the emergency craniotomy .... he would have died."

When interviewed on the day of the incident the victim said that he had picked up the crowbar because he was scared and wanted to frighten the victim. He claimed that he had been holding the crowbar by his side and that the victim had been laughing at him. He accepted that the victim had turned his back, but said that the victim had been abusive. He said that the victim had been bent over, sideways on, and he had stuck him on the head with a one-handed blow. When asked what injuries he expected to cause, he said "A lot, I know that".

The residual effects on the victim physically and psychologically have been severe. His hearing, balance, sleep and vision are affected; he suffers severe headaches; he is on permanent medication; he attends hospital once a month for rehabilitation; he has cognitive difficulties such as memory loss, and his memory for new learning is affected; his attention is impaired; he displays anxiety; and he is psychologically vulnerable. It is thought unlikely that he will be able to take up open employment. His capacity to improve his quality of life is in jeopardy. He is married with a child, but his wife and child live apart from him. His condition now affects his ability to visit them. He is forced to rely heavily on the help of other members of his family.

The Attorney General draws attention to what he submits are a number of aggravating features: a 35cm crowbar was used and with it the offender deliberately struck a blow, having previously armed himself with the weapon; the blow was struck when the victim was bent down with his back to the offender and when the argument had ended; and the victim has suffered severe and lasting effects.

Our attention is drawn to (among other cases) Attorney General's Reference No 47 of 1994 ( R v Smith ) (1995) 16 Cr App R(S) 865, in which grievous bodily harm with intent had been caused to a victim by repeated kicks to the head when the victim was on the ground. In that case, as in this, there were permanent injuries to the victim. In giving judgment Lord Taylor CJ said at page 867:

"It is submitted that in those circumstances the sentence of two-and-a-half years was not merely lenient but was unduly lenient. We have had our attention drawn to previous authorities which it is not necessary to rehearse. It is true that in some cases where there have been exceptional mitigating circumstances or on Attorney General's references, where the element of double jeopardy existed, sentences of less than four years have been imposed or substituted. However, the general level of sentencing, in our judgment, for offences under section 18 of the Offences Against the Person Act 1861 is of the order [of] four years and upwards."

In reliance on that authority it is submitted for the Attorney General that this sentence was on any showing unduly lenient. In passing sentence the Assistant Recorder said to the offender:

"You know from your own experience the disastrous results that follow from violence and I am quite satisfied that you regret that moment of madness when you struck your colleague, whatever the provocation was. Through your counsel you accept the seriousness of what you did and you appreciate that there is only one sentence that can follow.

I bear in mind the plea of guilty that you have tendered and the immediate remorse that you showed thereafter but the offence is so serious that a sentence of imprisonment must follow and bearing in mind all the mitigation, the reports and letters of recommendation that have been sent to me on your behalf, the sentence in this case, quite unusually, in the light of your own psychiatric condition at the time, is one of 12 months' imprisonment."

There are a number of features of what the Assistant Recorder said with which this court finds itself in agreement. First, in referring to "a moment of madness" the Assistant Recorder was correct in inferring that the offender was suddenly impelled to strike this blow without any prolonged preparation or premeditation beyond the arming of himself with the crowbar. The Assistant Recorder also refers to the existence of some provocation, and there is a suggestion in the evidence that the offender was provoked by a particularly hurtful remark made to him. The Assistant Recorder also referred to the seriousness of what the offender did. That is clearly a cardinal feature of this case. The Assistant Recorder bore in mind correctly the offender's plea of guilty and also his expression of remorse immediately following the incident. He went on, however, to say that the offence was so serious that a sentence of imprisonment was inevitable. That was unquestionably a correct view of the case. The Assistant Recorder then referred to the reports and letters of recommendation that had been received on behalf of the offender and it is right to acknowledge that a number of members of the public and fellow employees of the offender had written letters in which they had expressed great confidence in him and emphasised that this conduct was entirely out of character. Indeed, he had no previous convictions for violence or anything else. Lastly, the Assistant Recorder referred to the offender's psychiatric condition. That was a reference to an unfortunate fact that in August 1992 the offender had been the victim of a stabbing incident. He had been stabbed by another man in a public house. The knife used to stab him had broken within his body and he had had to undergo an operation in order to remove it. The perpetrator of the violence on that occasion had been sentenced to three years' imprisonment, but as a result of this experience there was evidence that the offender himself was suffering from post traumatic stress disorder, an unfortunate consequence of which he was not the author.

On behalf of the offender Mr Gaskell relies on the mitigating features which we have mentioned. He submits that this case should be distinguished from Attorney General's Reference No 47 of 1994 ( R v Smith ) to which we have referred.

The first question we have to address is whether this sentence was unduly lenient. We have no hesitation in concluding that it was. While, as we have indicated, we find ourselves in agreement with much that the Assistant Recorder said, we feel bound to conclude that he did not attach adequate weight to the severity of the injuries which the victim had suffered, nor did he fully recognise the need for the courts to be seen clearly and unambiguously to affirm the unacceptability of violence and injurious conduct such as that of the offender in this case.

In our judgment the sentence which the Assistant Recorder imposed was unduly lenient. It fell short by a very substantial margin of the appropriate sentence in all the circumstances. The proper sentence in our judgment, taking full account of the mitigating factors at trial, would have been one of at least four years' imprisonment. In the present situation we must take account of the element of double jeopardy which is very much present in this case since, on his current sentence, the offender is almost due to be released. The only mitigating factor in that respect is that almost as soon as the sentence was passed the offender was warned of the risk that the sentence might be referred to this court. In all the circumstances however, and reflecting the existence of double jeopardy, we conclude that the existing sentence must be quashed and that a sentence of three years' imprisonment should be substituted.

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