Neutral Citation no. [2001] NICA 42 	Ref:     	CARA3126.T	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	04.10.2001	
(subject to editorial corrections)	 	 	

 
 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
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THE QUEEN
 
v 
 
RODNEY LEIPER
 
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CARSWELL LCJ
 
            We are in a position to give our decision in this case so we shall proceed at once.  This is reference under Section 36 of the Criminal Justice Act 1988 brought by the Attorney General, who claims that the sentence imposed by a learned trial judge was unduly lenient.        The matter arises out of events which took place a fairly considerable time ago, now in excess of two years.  On 5th September 1998 a serious riot took place, in the course of which there were a considerable number of petrol bombs thrown, there was riotous behaviour and in an incident, with which this particular defendant was not connected, a policeman lost his life because of the throwing of a blast bomb.  The defendant was not connected with that incident but it shows that things were seriously disturbed on this evening.
The charge against the defendant was of riotous behaviour and of throwing a petrol bomb.  He was arrested on 9th September 1998 and interviewed.  He was in prison until 21st December 1998 when he was granted bail and we have been informed, and for present purposes will accept, that he conducted himself properly when he was on bail, obtained gainful employment and has not been in any trouble of any sort since.
The preliminary enquiry took place on 26th February 1999. The defendant was arraigned on 21st April 1999, at which time he entered a plea of guilty to riotous behaviour but not guilty to possession of a petrol bomb.  The trial took place on 21st, 22nd, 23rd and 24th June 1999, and we interpose to say that at that stage we consider that matters had certainly proceeded with proper dispatch and that there is no point about time up to that time. There then followed a hiatus until judgment was given on 24th February, some eight months later. We have not been given any reasons for that delay, and we do not wish to speculate why it should have occurred except to say that if there was no reason for it we would find it regrettable, and we must express the hope that Crown Court judges will in general give judgment in cases where they have reserved within a much more expeditious time.  The learned trial judge sentenced the respondent, the defendant in the trial, to two concurrent sentences, one of three years in respect of the petrol bomb and one of one year in respect of riotous behaviour, and he suspended each sentence for five years.  On 21st March 2000 the Attorney General applied for leave to bring a reference and two days later the defendant lodged an appeal against conviction.  That matter did not come on until the following March 2001 because of difficulties which arose over obtaining a transcript of the evidence, attempts to reconstruct it, and the eventual submission of agreed notes of the evidence of several witnesses including the defendant himself.
This Court heard the appeal on 12th March 2001 and gave judgment affirming the conviction on 3rd April 2001.  The reference then was put in the list for mention, and took its place in the queue of cases waiting for hearing, and came on for hearing today, 4th October 2001.  One of the points made in favour of the respondent is that it is now just over three years since the offence was committed.  The learned trial judge found that the defendant had thrown a petrol bomb, he accepted the identification, and we had little hesitation in upholding his conclusion on the evidence.  He found apparently that because the petrol bomb had fallen short by some twenty feet or so of the police lines at whom he threw it the defendant had not actually intended to cause personal injury to the police officers, although he was reckless in the circumstances.  As we stated in argument, we have some difficulty with that conclusion and it would be open to us to find otherwise having been seised of the appeal against conviction.  Nevertheless, it was taken into account by the learned judge, who said in the first page of his sentencing remarks that if he had found that he actually intended to cause personal injury to the police officers he would go straight to prison for a substantial period.
            He then went on and rightly dismissed some of the factors which had been put forward in favour of the defendant for not imposing an immediate custodial sentence. He rejected high emotion and political opinion, he then dealt with the question of the defendant’s remorse which he hoped was genuine; he took into account his clear record and his respectable working record and the family background and also rejected that he had admitted only sectarian abuse at football matches, which he regarded as reprehensible and no excuse.  He then, without going into any further reasons or giving any specific grounds for doing to beyond those which I have mentioned, suspended the sentence. We pause there to say that if the provisions of the Criminal Justice (Northern Ireland) Order 1996 are brought into operation, requiring exceptional circumstances to be established, we cannot see that any of these matters could possibly qualify.  It was open in principle to the learned trial judge to   suspend these sentences, but we have to say that in the nature of these offences that was unduly lenient.  This Court has had on a number of occasions to consider the proper level of sentencing in relation to throwing petrol bombs, either at members of the Security Forces or at houses or into vehicles, and I can do no better than to quote the first part of Lord Justice MacDermott’s judgment in The Queen v Dean (1997, unreported):
“The petrol bomb is a potentially lethal weapon, it can cause frightful and disabling burns, these may lead to death.  For many years Judges have been making it clear that to throw a petrol bomb exposes the thrower to an almost certain custodial sentence and one to be measured in years.”  
 
This court made that clear in relation to throwing such bombs into houses (R v Shaw and Houston [1989] 8 NIJB 60) and in relation to vehicles (R v Blaney & Ors [1989] NI 286).  At 290 of the latter case Hutton LCJ said:-
“This court has said that those who make or throw petrol bombs must expect a custodial sentence so also must those who hijack and burn vehicles.  Sometimes it may be possible because of some exceptional circumstances to suspend a sentence but that will be a rare possibility when the offences arise out of widespread and organised lawlessness.” 
 
When the target is human that approach is even more inevitable, we would also repeat what this court said in Attorney General’s Reference number 3 and 4 of 1992, [1993] 3 NI JB110:
“A petrol bomb is frightful weapon which can cause appalling injuries as this case shows, whether it is used on behalf of a terrorist organisation or not.  The wickedness which must be severely punished and the act which must be deterred is the use of the petrol bomb itself.”
 
We underline and repeat the expressions in that case and in those from which the quotations were taken, and say that there must be unusual and exceptional circumstances before a Judge can find it proper to do otherwise than impose an immediate custodial sentence.  We accordingly are quite clear that this sentence was unduly lenient and that the Judge should in our judgment have unquestionably sentenced the respondent to a custodial sentence taking immediate effect.
We then have to consider whether in the exercise of our discretion we should disturb this sentence, which we have accepted was wrong and unduly lenient, and we have two factors which we must take into account.  The first is that of double jeopardy and the second is that of the time which has gone past since the commission of the offence.  We have to ask ourselves do we think it would be right, even though the sentence was far too lenient, do we think it would be right at this stage in the light of all factors to change it to a more severe sentence. We have given this very anxious consideration, both before and during and since the hearing of the argument in this case. On one hand quite a considerable time has gone past since the commission of the offence, a little over three years ago. In support, in favour of the applicant is the fact that he has kept right out of trouble since. He has been gainfully employed and in our estimation the impact of the trial and conviction and his period which he spent in prison have been such that we feel fairly confident that he has learnt his lesson and he himself will not be a risk to society again.  Against that we have to take into account the fact that part of the delay was caused by the fact that he put in an appeal, which we rejected pretty summarily in the end, and which may very well have been triggered by the fact that the Attorney General had sought a reference.  We have to look at all these factors and we have to consider the public interest in whether it is necessary, notwithstanding the factors in favour of the respondent, to mark the seriousness of this offence by imposing a custodial sentence.  We have come to the conclusion, not without hesitation, that we in the exercise of our discretion will not upset the learned judge’s sentence, having underlined the desirability of sentencing properly and effectively in these cases and the fact that the delay was to some extent caused by the fact that an appeal was brought by the respondent himself.  Having found that, we are not prepared then to accede to the Attorney General’s application.  We find it accordingly unnecessary to reach any conclusion on the question of unreasonable delay.  We would be slow in such a case to come to such a conclusion, taking into account all these matters, and we should have to consider very carefully what action we should take if we did find that there was unreasonable delay, but we shall not express any conclusion as to whether there was a breach of Article 6 and the respondent’s rights under the Human Rights Act because the matter has been sufficiently concluded by the exercise of discretion.  We therefore will not accede to the Attorney General’s application in this case.