Deferment of sentence - Exercise of power of deferment - Wounding with intent to cause grievous bodily harm

Attorney General's Reference (No 62 of 2011); R v Johnson: Court of Appeal, Criminal Division (Lord Justice Pitchford, Mrs Justice Cox and Mr Justice Cranston (judgment delivered extempore)): 13 September 2011

The offender, then aged 18, and the victim, aged 17, each attended a birthday party at the home of a friend. In the early hours of the following morning, after the party had ended, the victim and his friends and the offender and his friends were sheltering in a garage waiting for taxis to go home when an argument broke out between the two groups. The offender, believing that his girlfriend had been attacked, fought with the victim.

Eventually they were separated and the victim walked away. The offender went to his house, got a knife and returned to the scene. He and his friends approached the victim's group of friends. The offender confronted the victim and they again fought with each other. They fell to the floor and whilst there, the offender stabbed the victim twice. The victim got up and stepped away from the offender, who continued to attack him. The victim was later taken to hospital. He sustained two wounds. The first was a 2cm inverted v-shaped wound over the left upper arm, which required two stitches. The second was a 5cm horizontal wound over the left shoulder blade, which required four stitches.

When the offender was arrested, he told the police officers that he had stabbed the victim in defence of his girlfriend. In interview, he contended that his intention had been to cause damage to the victim. At a plea and case management hearing at the Crown court, the offender pleaded guilty to wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861.

A pre-sentence report noted that the offence in question indicated an escalation in the seriousness of the offender's offending, he having a previous conviction for assault, for which he had been fined. It further noted, as an aggravating factor, that the offender had chosen to arm himself with a knife which he had taken to the scene and had used to stab the victim. The report concluded that a non-custodial sentence would not be appropriate in the circumstances.

However, the pre-sentence report noted that the offender had had a difficult childhood relationship with his parents, which affected his behaviour. It also noted that the offender had recognised that he had anger issues and that, prior to the instant offence, he had sought professional help. A psychiatric report stated that the offender had early attachment problems and trauma after he had witnessed, at an early stage, violence between his parents.

It concluded that the offender suffered from anxiety and depression, which required long-term psychological therapy. The judge stated that, as the offence had involved a knife, it was inevitable that a custodial sentence would have to be imposed.

However, having had regard to the psychiatric report and the fact that the offender, aged 19, had started to address his issues concerning his behaviour, he concluded that a custodial sentence would be likely to be detrimental to the offender and he deferred sentence, with conditions that the offender should continue psychotherapy, that he should attend appointments with a psychiatrist, and not commit further offences. Following the deferment of sentence, the offender completed a course in electrical installation and he obtained work experience in that field.

A letter from his employer stated satisfaction with his performance. The attorney general applied for leave, pursuant to section 36 of the Criminal Justice Act 1988, to refer the deferment of sentence to the Court of Appeal as unduly lenient. Leave was granted. A pre-appeal report stated that the defendant had attended four out of five of his counselling and psychotherapy appointments. It also stated that such treatment programmes would be available in custody or on licence.

The attorney general submitted that deferment of the sentence failed to reflect the seriousness of the offence and the culpability of the offender.

The court ruled: The power to defer a sentence in the Crown court was provided by section 1 of the Powers of Criminal Courts (Sentencing) Act 2000. It was settled law that great care was needed before a court exercised the power to defer a sentence. It was the duty of the sentencing court at the conclusion of the period of deferment, to first ascertain the purpose of the deferment and any requirement imposed on him by the deferring court before considering sentence.

If the offender had substantially conformed, or attempted to conform, with the expectations of that court, he was entitled to expect that an immediate custodial sentence would not be imposed on him. If he had failed to conform, the court should state precisely in what respects he had failed, so that the reasons for the sentence which it imposed would be clear.

In the instant case, the deferment of sentence was unduly lenient. The pre-sentence-report before the judge had acknowledged, and the judge had taken the view, that, where a knife had been taken to the scene and had been used to inflict injury, custody was inevitable. However, the effect of deferring a sentence, in the absence of some express indication by the court, was to convey the offender that if he complied with conditions of deferment and committed no further offence, he would receive a non-custodial sentence.

In all the circumstances the deferment of sentence was unduly lenient. Bearing in mind the features of personal mitigation, which were exceptional, after a trial, the least sentence that was appropriate was three years' imprisonment. Having regard to the offender's youth and to double jeopardy, a sentence of 18 months' detention in a young offenders institution would be imposed.

The order deferring the sentence would be quashed and substituted by a sentence of 18 months' detention in a young offenders institution would be imposed.

R v George [1984] 3 All ER 13 applied; A-G's Reference (No 22 of 1992) [1994] 1 All ER 105 considered; A-G's Reference (No 101 of 2006); R v P [2006] All ER (D) 121 (Dec) considered.

James Hawks (instructed by Lee Rigby Partnership) for the offender. Zubair Ahmed (instructed by the treasury solicitor) for the attorney general.