No: 200701490/A7 
Neutral Citation Number: [2007] EWCA Crim 1312
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 21st May 2005
 
B E F O R E:

LORD JUSTICE HUGHES 

MR JUSTICE SAUNDERS 

SIR JOHN BLOFELD 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 19 OF 2007 
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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Mr P Wright QC appeared on behalf of the Attorney General
Mr P Hall appeared on behalf of the Defendant
 
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J U D G M E N T 

1.	LORD JUSTICE HUGHES:  HM Attorney General seeks leave to refer to the court under section 36 of the Criminal Justice Act 1988 a sentence of four years' imprisonment imposed after trial for the offence of causing grievous bodily harm with intent which was done by deliberately driving at another person who was on the pavement at the time.  We give leave.
2.	On the afternoon of Monday 3rd April 2006 the defendant made a call at a small garage operated by a man called Paul Mason.  The defendant had a sideline selling diagnostic computer disks and he was offering them for sale.  The garage owner, Paul Mason, did not want to buy.  He may have regarded the provenance as questionable and it may very well be that he made known his feelings in terms which were forthright to say the least.  At all events a row ensued in the garage.  
3.	The defendant went back to his car.  The row continued.  Once in the car the defendant drove it towards Paul Mason on the forecourt, who stepped or jumped back out of the way.  Mr Mason then kicked out at the car.  He kicked a number of times at the driver's door and struck it, and he kicked off the wing mirror.  The defendant began to drive off at a speed described by others as "crawling speed" and announced or shouted that he would call the police.
4.	Mr Mason followed the defendant, so the row was continuing.  The defendant, however, was in a car and could simply have left the scene.  He did not.  He turned round and came back, again driving his car onto the pavement and causing Mr Mason to jump out of the way and to fall to the floor.  As the defendant left the second time Mr Mason armed himself with a tyre lever and pursued the car.  He said afterwards that he had intended to drag him out of the car and hit him with the iron bar had he been able to catch him, but he could not.
5.	The defendant drove away from the scene.  As we understand it, he was away for a number of minutes.  He did not return immediately.  There was no possible justification for returning at all, but return he did, and on what amounts to a second, and arguably a third, occasion drove the car directly at Paul Mason as he stood on the pavement and mounted the pavement in doing so, crossing the road from the other side.  Paul Mason was able to get out of the way and avoid impact, though he collided with some fencing in evading it.  But his father, Peter Mason, who had been there throughout and was standing not far away, was struck by the car.  Peter Mason, the father, suffered as a result both a cut to his head and more seriously a nasty comminuted fracture to the right leg.  The defendant drove away.
6.	When eventually the defendant was traced and interviewed by the police he accepted that he had been there and he accepted the row that had happened.  He asserted that all the aggression had been on the side of the Mason men.  He denied that he had ever mounted the pavement and he denied that he had hit either of the men.  He contested the trial.  The jury must have rejected his account.  He was convicted of the principal offence of causing grievous bodily harm with intent.  
7.	Paul Mason had a suspected or possible fracture of one rib.  Peter Mason, his father, in his early 60s, was a man with an existing, though hitherto not particularly troublesome, heart condition.  The comminuted fracture of his upper tibia required an operation some three days later for internal fixing with a metal plate and he was in hospital for ten days or thereabouts.  As at the date of the trial, ten months later, he was still suffering some considerable discomfort and restriction in movement and it was likely that there would be an indefinite prolongation of some disability as a result of the defendant's actions.  He was still walking with a crutch at that time.  The judge dealt with the defendant on the basis that what he had done, returning to the scene for a third time and driving for a second time onto the pavement at the other men, had:
"... very substantially and adversely affected [Mr Mason senior's] quality of life."
as well as causing some, happily more transient, injuries to his son.
8.	The defendant was 30 years of age at the time.  He had a very old conviction for robbery at the age of 16 which had resulted in a supervision order and which the judge disregarded, as it seems to us, correctly.  There was one trivial offence of battery in 1999.  There were no other indications of any violence or aggression and he had never been sentenced to a custodial sentence.  His last conviction was five years before the present offence.
9.	The pre-sentence report indicated that he was a young man with something to be said for him.  He had left school early but he had made something of himself, working his way from a Youth Training Scheme through City and Guilds then Higher National Diploma to self-financing himself to university.  The part-time trade in computer disks that he was pursuing was designed to finance him through his degree.  He was a single man with his own home and able to offer appreciative references from some who knew him.
10.	The probation officer described him, of course out of his motor car, as generally rather submissive in character.  He had expressed some degree of remorse after the trial for what had happened, but the judge, who was in the best position to assess that, was driven to the conclusion that that was really the result not so much of genuine sorrow for what he had done, but for having lost the trial and finding himself facing a sentence.  In his favour the prison report confirms the impression given by the social enquiry report, that he is capable of decent and untroublesome behaviour.  He is a perfectly satisfactory prisoner.  
11.	The trial judge, we are conscious, had heard the trial and had seen all the parties.
12.	The Attorney General submits that a sentence of four years after a trial for this kind of offence is simply significantly too low.  Our attention has been drawn to three cases: Attorney General's Reference No 13 of 2001 (R v Cole) [2001] 2 Cr App R(S) 112 at 497, R v Twumasi [2005] 2 Cr App R(S) 107 at 671, and R v Evans [2002] 2 Cr App R(S) 12.  All are cases of the use of a motor car as a lethal weapon.  
13.	In the first of those this court indicated that on a late plea a sentence of approximately four years would have been appropriate.  That indicates something like four and a half years after trial.  It was a case in which there had not been a second attempt to strike the pedestrian with the motor car.  In Twumasi the injuries were worse.  The charge originally had been attempted murder.  The victim nearly died.  This court reduced the sentence from 12 years to eight.  In Evans the element of premeditation was greater because the defendant went home to fetch his car and then came back to use it as a weapon.  One of the victims was rendered paraplegic as a result, so the injuries were also worse.  In this court eight years' imprisonment was in that case upheld after a trial.  
14.	It does not seem to us that there is a significant difference between a case in which the source of the original disagreement was one between two drivers, as in Cole, or (as here) between two people, one of whom had a car but was outside it when he got into an disagreement.  What matters is that the defendant used his vehicle as a weapon at a time when it also provided him with a ready means of bringing the altercation to an end.  In the present case what is highly significant is that he used it twice.  It seems to us that the case is not as bad as Twumasi or Evans, but it is rather more serious than Cole.
15.	In the end we agree that in this instance the trial judge's sentence does fall below and outside the bracket which is available, reminding ourselves, as we do, that the jurisdiction to entertain references by the Attorney General does not exist to enable us simply to substitute a sentence which is marginally different from the one which the trial judge entertained.
16.	In this case, as it seems to us, we should quash the sentence passed by the learned trial judge and we substitute a sentence of six years' imprisonment. 
17.	MR WRIGHT:  Do the remaining sentences remain as they are, together with the disqualification?
18.	LORD JUSTICE HUGHES:  Yes, Mr Wright.  Certainly.  Thank you for reminding us.