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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 >> Attorney General's Reference No. 155 OF 2004 [2005] EWCA Crim 968 (20 April 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/968.html Cite as: [2005] EWCA Crim 968

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 20 April 2005

1. LORD JUSTICE ROSE: The Attorney General seeks the leave of the court under section 36 of the Criminal Justice Act 1988 to refer a sentence said to be unduly lenient. We grant leave.
2. The offender, Deborah Martin, is 24 years of age, having been born on 21st February 1981. On 25th October 2004, she pleaded guilty to two offences: unlawful wounding contrary to section 20 of the Offences Against the Person Act and possession of an imitation firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968. On 23rd November she was sentenced by His Honour Judge Fish at Minshull Street Crown Court in Manchester to a three year community rehabilitation order with a condition that she attend a 'Think First' course and be under curfew for four months. That sentence was imposed on each count concurrently.
3. There were two co defendants: her sister Denise and a young woman called Emma Bateson. They both pleaded guilty to the section 20 charge only. They were sentenced in the same way as the offender.
4. The facts were these. The victims were a John and Susan Stephenson. The offender's sister Charlene developed a friendship with their daughter, Emma, who was 18 years old. The friendship became very close and may well have been sexual. Mr and Mrs Stephenson disapproved.
5. On 12th April, Emma was at her mother's house and told her something of what had been going on between herself and Charlene Martin. While they were talking Charlene telephoned from a box across the road. Mrs Stephenson went out to confront Charlene. There was an argument. The two had to be separated by Emma.
6. The following day, Charlene telephoned the Stephenson household again. Mrs Stephenson told her not to telephone any more.
7. That night, about 11.30, Mrs Stephenson and her two younger daughters (who are 11 and 4) were in bed and Mr Stephenson was downstairs. The offender and the two co-accused appeared outside. The offender asked to speak to Emma. Mr Stephenson opened the door. Mrs Stephenson had come downstairs and was behind him. The offender saw her and asked: "Are you the one who fucking hit my sister?" All three defendants then screamed abuse at Mrs Stephenson and pushed past Mr Stephenson. The three of them then rushed at Mrs Stephenson and kicked and punched her as they held her face down over the sink. They also attacked her with a craft knife, inflicting scratches on her arms and back and a deeper cut to her shoulders of which the members of the court have seen photographs.
8. Mr Stephenson saw three men coming up the drive and he tried to stop them entering by closing the door. They pushed against the door. Mrs Stephenson tried to prevent the defendants from leaving. The offender went into the hall and confronted Mr Stephenson who told her the police were on their way and she was not to leave. At that stage the offender produced a metal handgun with a six to eight inch barrel, one-and-a-half inches in diameter. Her plea of guilty was entered on the basis that it was an imitation firearm. The offender shouted to Mr Stephenson to open the door. He saw the gun. He did so. He shouted at his wife to release the other defendants. By this stage the Stephensons' 11-year-old daughter had been wakened and was screaming. She called the police using her mobile telephone and told them that someone was holding a gun to her father's head.
9. On behalf of the Attorney General, Miss Whitehouse draws attention to what she rightly submits are six aggravating features. First, the offence took place late at night. Secondly, the victims were attacked in their own home. Thirdly, the offences were committed after entry into the house had been forced. Fourthly, two children were present. Fifthly, the offences were pre-planned and, sixthly, the firearm offence was committed during and after a violent attack with a craft knife which was motivated by a desire for revenge.
10. Miss Whitehouse draws attention to the mitigation to be found in the pleas of guilty, the absence from the offender's record of any relevant previous convictions, the fact that she is relatively young, the fact that the wounds sustained by Mrs Stephenson were superficial and the positive characteristics to be found in the personality of the offender, particularly as the mother of a four-year-old child.
11. Miss Whitehouse draws attention to three authorities. In Avis [1998] 2 CrAppR (S) 178, Lord Bingham, CJ, said that custody is almost inevitable in relation to an offence with a firearm of this kind, even on a plea of guilty by a person of good character. In Attorney General's Reference No 49 of 1999 (Hinchcliffe) [2000] 1 Cr.App.R (S) 436, the judgment of the court was given by Kennedy LJ who said that, in the circumstances of that case, which, as it seems to us, were not as serious as the present, any sentence below two years would have been inappropriate. In Attorney General's Reference No 71 of 2001 (Nixon) [2002] 2 Cr.App.R (S) 79, Mantell LJ said that it would be very rare indeed for a non-custodial sentence to be passed in circumstances comparable to the present.
12. The submission by Miss Whitehouse is that a non-custodial sentence could not be justified. The offence was premeditated and carried out against a background of group violence late at night in the victims' home. In the circumstances the sentence, she submits, is properly to be characterised as unduly lenient.
13. On behalf of the offender, Miss Hayton, in an admirable submission which was both succinct and to the point, drew attention to all the features which can properly be advanced on behalf of this offender. She stresses the courageous plea of guilty in the belief that a custodial sentence was almost inevitable. She points out that the learned judge sentenced all three defendants in the like manner. The offender herself did not use the craft knife, though she was, of course, a party to the use of that knife and hence her plea of guilty to the section 20 offence. She alone of the three pleaded guilty to the firearms offence. Miss Hayton stresses that there is a very different side to the offender's character when compared with her conduct on this night: that is reflected in the numerous testimonials which were before the trial judge and which are before this court. She is clearly capable of being a caring and loving mother, sister and daughter. She has, since the non-custodial sentence was imposed, made an obvious effort to get away from the sort of people with whom she was associating at the time of these offences. She regrets the fear which she caused to the Stephenson family. She has successfully completed the four month curfew which she was required to undergo. It is also apparent from the supplementary report prepared by a probation officer for the benefit of this court that she has begun to address effectively the factors which underpin her offending behaviour, has identified the deficiency in her thinking and recognises the need to address her use of alcohol. The probation officer comments that she has demonstrated a high level of commitment to the community rehabilitation order which was imposed upon her.
14. It is to be noted that, so far as her four-year-old daughter is concerned, if the offender is now to be deprived of her liberty, the girl will be cared for by the offender's father and older sister. There is no question of that child having to go into the care of the local authority.
15. We take all of these matters into account. As it seems to us, a sentence of the order of two-and-a-half to three years was properly to be expected in the court below in relation to the firearms offence, taking into account the circumstances of the unlawful wounding offence as we have described them. It follows that the sentence passed by the learned judge was plainly unduly lenient. We take into account, however, double jeopardy - that is to say that the offender is being sentenced in this court a second time in relation to these matters. We take into account that, compared with the non-custodial sentence which was passed, this court is now going to pass a custodial sentence which is a further feature reducing the sentence now appropriate. And we also take into account the progress which has been made, which we have sought to summarise, as reported in the probation officer's report to this court: that also serves to reduce the sentence now appropriate. The sentence which we pass in relation to the firearms offence, and concurrently in relation to the unlawful wounding offence, is one of 15 months' imprisonment. That sentence the offender will start to serve when she surrenders to custody. Unless we hear any submission to the contrary, we shall order that she surrender to custody by noon tomorrow.
16. MISS HAYTON: My Lord, I have nothing to add, simply to say it will be the Elizabeth Slinger Road Police Station, if she could surrender to that police station by noon tomorrow.
17. LORD JUSTICE ROSE: Thank you very much.