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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 >> Tallis, R v [2018] EWCA Crim 2481 (17 October 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/2481.html Cite as: [2018] EWCA Crim 2481

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17 October 2018

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

LORD JUSTICE SIMON:

1. The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 apply in this case to two juvenile defendants whom we will refer to as TW and LR. This anonymity will last until they reach the age of 18.
2. On 8th June 2018 the appellant, Stewart Tallis, now aged 20, pleaded guilty in the magistrates' court to an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, and was committed for sentence to the Crown Court. The victim of the crime was Daniel Ferguson. On 14th August, in the Crown Court sitting at Chester, he was sentenced by His Honour Judge Thompson to a term of twelve months' youth detention. He appeals against that sentence with the leave of the single judge.
3. Four others were sentenced, having all pleaded guilty to section 47 assault. In the Crown Court, Nathan Green, aged 18, was sentenced to twelve months' youth detention for the assault and 36 months consecutive for a number of drug offences - a total of four years. Jamie Carter, aged 19, was also sentenced to twelve months' youth detention. He was sentenced in addition to a two month consecutive term for an offence of causing a public nuisance and a further two months' consecutive for breach of a community order - a total of sixteen months. TW and LR were dealt with in the youth court. TW was made the subject of a twelve months' intensive referral order, and LR was made the subject of an eight-month DTO, varied on appeal to a six-month DTO.
4. Daniel Ferguson was aged 16 and 10 months at the time that the offence was committed. In the early hours of 9th March 2017, just after midnight, the appellant and co-defendants Green and Carter met Daniel Ferguson. Later, at around 2.40 am, they met TW and LR, who were out on the streets of Ellesmere Port riding their bikes. Much of their activity was captured on CCTV.
5. At around 2.46 am Daniel Ferguson could be seen doing fist bumps and acting in an animated way. He appeared to be suffering from the effect of drugs. Shortly afterwards, the six of them were outside a block of flats. Green could be seen offering pills to the others. Daniel Ferguson took a tablet and put it in his mouth. TW and LR also appeared to take something. The group then walked around Ellesmere Port. Daniel Ferguson was conspicuously animated and boisterous.
6. At 3.04 am the CCTV images showed the group at Ellesmere Port Market. Daniel Ferguson was behaving erratically, bouncing around and punching the air, lying on his back, raising his arms and legs, and at one point trying to climb a drainpipe. He ran down a street and his face collided with some shutters.
7. The group left the area and walked towards Norfolk Road. At around 3.50 am Daniel Ferguson squared up to Carter and attempted to throw a punch at him. Carter defended himself and threw Daniel Ferguson on to the ground. The other members of the group then began to assault him while he was still on the ground. LR punched him twice and kicked him. Green punched him once and stamped on him. Carter punched him once and kicked him; and the appellant punched him twice.
8. The five of them then walked away. Daniel Ferguson got to his feet and held on to a fence. LR returned and punched him to the face, and, as Daniel Ferguson tried to walk away, LR pushed him, before punching him again on the back of the head, causing him to fall to the ground. LR then kicked him in the back twice and punched him in the ribs twice. Following this, LR went for his bike and used it, apparently deliberately, to run the front wheel of the bike into Daniel Ferguson's head while he was still on the ground.
9. Despite this, Daniel Ferguson got back on his feet and joined the group as they walked towards Cambridge Road. He attempted to assault TW, who punched him to the ground and kicked and punched him again. The appellant walked over and punched him twice to the body and face while he was on the ground. Daniel Ferguson was brought to his feet and the rest of the group started to walk away, running off towards the appellant's flat. They left their victim because at this point the police had arrived.
10. Officers found him lying on an abandoned sofa in the street. He appeared out of control and was restrained. He was taken by ambulance to A&E. He calmed down while there and told the police he had taken drugs that night. In hospital his condition deteriorated and he was sedated. He never regained consciousness and died, having suffered six cardiac arrests.
11. A postmortem examination concluded that he died from the toxic effects of MDMA, complicated by the use of LSD. He had fractures to three ribs. However, it was not clear whether this was the result of cardiopulmonary resuscitation or from a kick or stamp. The pathologist said the fractures were not associated with any significant internal organ injury and had played no part in his death.
12. Subsequent investigation showed that Green had been involved in offering to supply Class A and Class B drugs to others. The tin from which Green had offered pills was found to contain traces of MDMA. Text messages between Carter and a friend asserted that Green had supplied the group with MDMA and that Daniel Ferguson had consumed seven pills, half a bag of "magic" and LSD.
13. In interview the appellant exercised his right to silence, as did Green. Carter told the police that he, Green and the appellant were good friends with Daniel Ferguson. He said that Daniel was normal that night until he took drugs. He described him as "totally gone" after taking the drugs. He said that he himself had taken LSD and ecstasy that night, as had the appellant and Green.
14. Although the appellant had cautions in 2015 and 2016 for causing criminal damage, failing to comply with a section 35 dispersal direction and using threatening behaviour, he had not previously appeared before the courts.
15. A pre-sentence report was prepared at the sentencing hearing. In the view of the writer of the report, the appellant's drug-taking had affected his actions. He had told the writer of the report that he had initially kicked and slapped the victim to stop him being stupid but said that the kicks and slaps were not hard. He disputed that he had punched him. He did not condone the use of violence or the actions of his co-defendants. His care worker confirmed that since this offence he had matured, proactively making positive changes. He and his siblings had all been taken into care. His father was an abusive and controlling alcoholic who had "washed his hands" of him. The appellant admitted that he was a troublesome child; but he had gained GCSEs and was trying to obtain employment. He had been diagnosed with ADHD and depression, and was engaging with the mental health team. He had self-harmed in the past. Until recently, he was misusing cannabis on a daily basis, but he was motivated to reduce this. The current offence was an escalation in the severity of offending but not part of an established pattern. He was clearly upset about the death of Daniel Ferguson and said he did not intend to cause him harm. There were concerns that a custodial sentence would have a detrimental impact on his development, undoing the positive changes he had begun to make. If the court felt able to step back from a custodial sentence, a community order with a thinking skills programme requirement and up to 35 days RAR was proposed. He could be made subject to an unpaid work requirement and a curfew requirement if he had managed to secure stable accommodation.
16. In passing sentence the judge recited the facts as we have outlined them. He pointed out that the victim had been rendered agitated and hyperactive, apparently due to MDMA handed to him by Green. The whole group, comprising five people, had commenced an assault involving punching and kicks. It was an ugly and cowardly assault, which was to be treated as a joint assault. The victim had got up and become involved with another member of the group, and the appellant then knocked him to the ground and struck him twice when he was on the ground before bringing him to his feet. The assault was unpleasant. None of them, probably because they were under the influence of drugs, gave any thought or concern for their victim's welfare. If ever young people needed an illustration of the dangers of Class A drugs this was it: the needless loss of a young life and a group of young people behaving like a pack of wild animals. The judge made clear that Daniel Ferguson's death could not be attributed to the assaults, nor could the combination of drugs that killed him be traced to the MDMA that Green had supplied him. They would be sentenced only in respect of their criminality that night. The court bore in mind the offenders' ages at the time and the fact that the appellant was 18. The judge bore in mind their antecedents. He also had regard to the contents of the pre-sentence reports and everything that had been said and written about them. He took into account the delay in bringing the charges. The appropriate punishment in each of their cases could only be achieved with immediate custodial sentences, but the judge had regard to the fact that in each of their cases it would be their first custodial sentence. The appellant was aged 19 and was 18 at the time of the offence. Like his co-defendants, but particularly in his case, he had clearly had a difficult upbringing. The crime was a category 1 assault, within the meaning of the guidelines. It was greater harm because the victim was particularly vulnerable and it was a sustained attack. It was higher culpability because it was a group attack and involved the use of a shod foot. Ordinarily the starting point would be eighteen months, but there were aggravating features which would take the starting point higher: the location of the offence in public; its timing - in the early hours of the morning; and most importantly, the fact they were all under the influence of drugs at the time. The court would balance those matters of aggravation against the mitigation of the delay in the case - fifteen months up to the date of sentence - so the starting point would be eighteen months' custody. After one-third credit for plea, the appellant was sentenced to twelve months' detention. In order to achieve the appropriate punishment, that would have to be served immediately.
17. In his submissions to us today Mr Coutts has drawn attention to the fact that his client is progressing well in custody. He has been disturbed in his sleep patterns, but has now had medication to assist in that. He has been undertaking courses and has prospects of employment on release. In the grounds of appeal, he makes a number of points, but at the heart of his submissions is the contention that the judge was wrong to sentence the appellant to a term of immediate custody. It was said that the judge failed to distinguish the roles of the various defendants in the assault and the criminality involved offending, even accounting for the different ages, although he has not pursued that particular point today. It is said that the judge failed properly or at all to reflect the personal mitigation set out in the pre-sentence report, and entirely failed to reflect the personal mitigation advanced orally. This led to a sentence that was too severe and manifestly excessive in the circumstances. The sentence could and should have been suspended.
18. We have considered these points. It is plain that the judge was entitled to the view that the acts of each defendant were acts done in the furtherance of a common criminal enterprise. At no point did the appellant distance himself from the assaults of others and on two occasions he joined in to deliver punches while the victim lay helpless on the grounds. Nor are we impressed by any disparity argument by reference to the sentences passed in the youth court on TW and LR, where there is a different sentencing regime in relation to those under the age of 18.
19. We bear in mind that in assessing seriousness under the guidelines the court looks at both the harm caused and the harm intended. The offence was one of greater harm since the victim was vulnerable and the offending involved sustained or repeated assaults on the same victim, although we recognise that serious injury must normally be present. The offence involved higher culpability since there was kicking with a shod foot and the victim was vulnerable in the circumstances. Greater harm and higher culpability is category 1 offending within the section 47 assault guidelines, with a starting point of eighteen months. It appears that the judge took a starting point of eighteen months before credit for the plea. That starting point reflected the aggravating features of the offence which the judge identified, balanced against the considerable delay.
20. The offending was properly categorised as a sustained attack on a vulnerable victim, carried out by a group using shod feet and punches to the ground. The appellant was the eldest of those involved. We acknowledge that a twelve months' term was a stiff sentence for a young man who had not previously come before the court, but we are not persuaded that it was manifestly excessive. Nor are we persuaded that the judge, having considered all the facts that he had outlined, should not have imposed an immediate sentence of imprisonment. Accordingly, the appeal is dismissed.