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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 >> James, R. v [2013] EWCA Crim 1172 (13 June 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/1172.html Cite as: [2013] EWCA Crim 1172

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13 June 2013

1. LORD JUSTICE ELIAS: On 4th October 2012 in the Crown Court at Cardiff before Her Honour Judge Rees and a jury, the appellant was convicted of two offences, one wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861, and the second causing grievous bodily harm with intent, also contrary to section 18. He was sentenced to 11 years' imprisonment on each count to run concurrently. A co-accused, John Norfolk, was also convicted and he was sentenced to eight years' imprisonment concurrent on the same two counts. He now appeals against sentence by leave of the single judge.
2. The facts essentially are these. At about 9.45 pm on Thursday 16th June 2011, Paul Robinson left his home in Bridgend to go to the shops. He was walked along a path which is apparently known as the "Black Path". He met the appellant and the co-accused Norfolk. He asked if they knew someone called "Eggman". They did. He told them that Eggman owed them some money. Norfolk rang Eggman and gave the complainant his telephone. Eggman hung up on the complainant and the appellant laughed at the complainant. The complainant at that point pulled out a knife. Norfolk punched him twice in the face. He fell to the floor. Norfolk disarmed him by stamping on his hand which was holding the knife and kicked the knife away. At that point he handed the knife to the appellant who stabbed the complainant in the upper abdomen. In addition, both Norfolk and the appellant then stamped and kicked the complainant as he was on the floor, in a somewhat frenzied attack. There was evidence from two witnesses who were walking their dogs along a path who say they heard the kicking from around the corner. It sounded like horses hooves galloping. One of the witnesses said he saw Norfolk deliver a football-style kick to the complainant's back and then a stamp to the complainant's head. The appellant was repeatedly kicking the complainant to the chest and head and the evidence was that he was the more aggressive of the two and delivered between ten to 15 kicks. He shouted to the complainant that he would kill him if he pulled a knife on him again.
3. Norfolk took a picture of the bloodied face of the victim and forwarded the image to a friend. The appellant threw the knife into some bushes. Norfolk walked away and the appellant was continuing to kick the complainant. Norfolk apparently called the appellant away at that point. At one stage in the attack the appellant's shoe came off and he told the complainant that he was lucky that he was only wearing "daps" - in other words trainers. He sustained an injury to his ankle but denied that it came from the force of the kicks.
4. The complainant was admitted to hospital and had shoe imprints on his forehead and the lower side of his face and other swellings to his nose and his right eye. He suffered internal bleeding from a blood vessel torn by the stabbing. He developed various lung problems. Subsequently, in fact, he died but it was conceded that his death was not related to the injuries inflicted on the attack which is why the appellant and co-accused were not indicted for murder but only for section 18.
5. On the day following the incident the appellant caught a train to Birmingham very early in the morning. When he was picked up by the police there were no bloodstains on his trainers and he must have discarded them in an attempt to conceal his involvement.
6. The judge when sentencing had a pre-sentence report. This appellant had not previously appeared before the courts on any occasion. Norfolk had one minor past offence but was treated essentially as a man of previous good character. The author of the pre-sentence report noted that the appellant was sorry for his actions and the impact on the victim's family, but he demonstrated issues with anger management and he had not accepted full responsibility for the attack. It is right to say that he had when giving evidence expressed contrition for the injuries that he caused to the complainant, but it did not cause him to plead to these offences. He has at all times contended, and apparently still contends, that he did not in fact stab the complainant.
7. The appeal, which has been advanced very attractively this morning by Mr Morley, is essentially on two grounds. The first is that the sentence is too long given in particular the previous good character of the defendant and that he had expressed contrition; but the second and really the focus of his challenge is that there should not have been this differentiation between the sentences given to the appellant and Norfolk. It was an unacceptable disparity given that they had both played a very active part in this attack.
8. The judge, it has to be said, set out in some detail in her sentencing remarks both the background to this particular incident and the reason why she was drawing the distinction that she did between the appellant and the co-accused. First, he had used a knife, albeit that the verdict of the jury demonstrates that the co-accused Norfolk must have anticipated that he would do so because he was also convicted as a party to a joint enterprise using the knife. Second, the appellant repeatedly kicked and stamped on the victim and continued to do so even when Norfolk walked away and told him to stop. Third, he had fled the area and sought to conceal evidence. Mr Morley told us this morning that when he left the area the appellant was in fact going to an interview that had been arranged some time before but he conceded that he did leave very early in the morning, not at the time one might have anticipated he would leave simply in order to attend the interview.
9. We have to bear in mind that the judge here presided over the trial and was in the best position to assess the relevant contribution of each of these men. Mr Morley has with some force suggested that there were other factors here which demonstrated that the role of Norfolk in the whole incident was perhaps more significant than the judge had allowed, in particular it was Norfolk who had taken the photograph which was a deeply unpleasant aspect of the case, and was boasting of the attack in a pub after it had taken place. However, to some extent it may be that said that the appellant was also bragging in that way. He was not however involved in the taking or distributing of the photograph.
10. Having said that, as we say, we think the judge was entitled to take the view in the light of the evidence, which she had the advantage of hearing and we do not, that there was a justification for drawing a distinction between the sentences of these two men. Once that is determined, it seems to us that it is difficult to say that three years difference is manifestly excessive. We do accept that other judges may well have thought that there should be a narrower differential than was given in this case, but we do not accept Mr Morley's submission that each of these defendants should have been given the same sentence. The judge gave reasons for distinguishing between them which were cogent reasons and we do not think that we should not go behind them.
11. As to the question of the length of sentence, it is difficult to say that 11 years is too long and it is certainly not manifestly excessive. The starting point for an assault of this kind is 12 years and the range is nine to 16 years. There were two men involved. There was a knife involved. There were serious injuries. True it is that it was not a premeditated attack and there was an element of provocation or self-defence, however one categorises it, resulting from the fact that it was the complainant who initially produced the knife. But the judge has come down a little from the starting point to reflect these features. It was a brutal attack and the judge, as we say, plainly took some care over this sentence and we do not think we can properly say that the sentence meted out to the appellant was manifestly excessive. Accordingly, the appeal fails.