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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 >> Bowker v R.  EWCA Crim 1608 (09 July 2007)
Cite as:  EWCA Crim 1608
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
(His Honour Judge Gilmour QC)
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE RAFFERTY DBE
MR JUSTICE WYNN WILLIAMS
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Smith Bernal Wordwave Limited, 190 Fleet Street
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Iain Goldrein QC (instructed by the CPS) for the Respondent
Hearing dates : 9th May 2007
Crown Copyright ©
Lord Justice Latham:
"I have had the advantage of seeing a video. There may be those in court who have not seen the video. They will have to take my word for it that it shows on occasions scenes of sickening violence, and it is almost a miracle that nobody received permanent or fatal injuries. There are, in particular, occasions where defenceless individuals who, of course, may themselves have been earlier guilty of violence, having their head kicked as if it was a football. I can only assume that those who were inflicting those kicks were wearing trainers or other soft shoes. Had the case been otherwise, brain damage would have been inevitable for those who were completely defenceless on the ground."
"He is involved from the very outset squaring up to Banner and fighting with him sparking the large scale disturbance. Prominently involved in the initial stage of the disturbance he repeatedly adopts a boxing stance and punches out at others and on more than one occasion is clearly pleased with his efforts. He returns to the fray having walked off and remains to the fore of the group who retreat after the initial incident resisting the efforts of a female to escort him away. Thereafter he is involved in punching and kicking "Bravo" to the ground and whilst he is on the ground. He is also one of several males who repeatedly kicked Banner to the head as he lies motionless in the street."
"All of you are capable of violence when you have had too much to drink. In my view it is necessary for the protection of others who attend clubs in Wigan that you should be prevented from doing so. Accordingly the statutory requirements are, in my judgment, satisfied in respect of each and every one of you. Without limitation of time, you are prohibited from entering Wigan Town Centre between the hours of 10 pm and 7 a.m. each and every day of the week."
"The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and date of conviction should now be clear. The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence. It has been described as a "powerful factor". That is for the obvious reason that as Mr Emmerson points out, the philosophy of restricting sentencing powers in relation to young persons reflects both (a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and (b) the recognition that, in consequence, sentencing them should place greater emphasis on rehabilitation and less on retribution and deterrence than in the case of adults. It should be noted that the "starting point" is not the maximum sentence that could lawfully been imposed, but the sentence that the offender would have been likely to receive."
"No one should be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
"It is, however, important to say that the broad conceptual approach of a sentencing court does not undergo a fundamental change simply because the offender passes his 21st birthday. If all factors were identical an offender aged 21 years and a few days is likely to receive in substance much the same punishment as one who is 20 years and 11 months, and the court will in substance take account, for instance, of the criteria of section 1(4) and (5) of the 1982 Act with the slightly older person although not in terms strictly required by statute to do so."
"The most telling point raised before us seems to be the point made that, had the matter been discovered and timorously dealt with, the appellant would have been entitled to be treated as a juvenile and detained for no more than 12 months. Whilst that is not in itself definitive of any sentence which could later be imposed upon him, it is a powerful factor to be taken into account."
"We take the view that there is no axiomatic approach to a problem of this kind which would entitle the court to say that the right sentencing approach is to look at the matter as at a particular date, we consider that the matter has to be looked at in the round. The fact that the series of offences was committed when the offender was 14 to 15 is, as was said in Cuddington, a powerful factor in affecting the appropriate sentence to pass as at to-day. On the other hand, it is not the sole and determinative factor. We also have to look at how a 14 to 15 year old might be dealt with today and we have to look at all the circumstances of the case, including the way in which the appellant chose to conduct his defence."
"But in a case such as the present where the date of conviction is only a few months after the date of the offence, we think that it would rarely be appropriate to pass a longer sentence than that that which would have been passed at the date of the offence."
"It will rarely be necessary for a court even to consider the passing of a sentence which is more severe than the maximum it would have had jurisdiction to pass at the time of the commission of the offence."
"Any court dealing with an offender in respect of his offence must have regard to the following purpose of sentencing –
a. the punishment of offenders
b. the reduction of crime (including its reduction by deterrence)
c. the reform and rehabilitation of offenders,
d. the protection of the public, and
e. the making of reparation by offenders to persons affected by their offence."
Subsection (2) of that Act expressly disapplies that provision in relation to offenders under the age of 18 at the time of conviction. Whilst therefore it is clearly right that a person who has committed an offence whilst under the age of 18 should be sentenced on the basis that his culpability is to be judged by reference to his age at the time of the offence, nonetheless, the necessary sentencing disposal has to take account of the matters set out in section 142(1) if he is convicted after he has reached the age of 18. When sentencing those under 18, the court will generally focus more on their requirements and their rehabilitation. Section 142 suggests that for those over the age of 18, however, more general public policy considerations, in particular deterrence, can play a greater part.