No: 03/4986-5139-522301587/C1 
Neutral Citation Number: [2004] EWCA Crim 2675
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday 25 October 2004
 
B E F O R E:

THE VICE PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION 

MR JUSTICE HENRIQUES 
 
MRS JUSTICE DOBBS 

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R E G I N A 

-v- 

JASON DOCKING
JAMES MATTHEW WILD 
LEROY MARVIN LEWIS 
JORDAN COOK 
 
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MR FRANCIS GILBERT appeared on behalf of the APPELLANT DOCKING 
MISS LAURA BRICKMAN appeared on behalf of the APPLICANTS WILD & LEWIS
MR RICHARD BARRADELL appeared on behalf of the APPLICANT COOK
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J U D G M E N T
1.	THE VICE PRESIDENT:  On 8th July 2003, at Sheffield Crown Court, before His Honour Judge Goldsack QC, the applicants Wild, Lewis and Cook pleaded not guilty to count 4 in the indictment against them, which alleged conspiracy to commit criminal damage, and on 22nd July they were convicted both on that count and on count 2, which alleged conspiracy to commit grievous bodily harm.  Cook was also convicted on count 1, which was of unlawful wounding.  They were put back for sentence.
2.	On 1st August, before the same court, the appellant Docking was convicted on a separate indictment containing four relevant counts, and he too was put back for sentence.
3.	On 8th August they were all sentenced by Judge Goldsack.  In the case of Docking, his sentence on count 1, which was attempted murder, was eighteen years' imprisonment; on count 3, which was possessing a shotgun with intent to endanger life, fifteen years concurrently; on count 4, dangerous driving, two years consecutively; and on count 5, driving while disqualified, six months concurrently.  His total sentence was therefore twenty years' imprisonment and he was also disqualified from driving for five years.
4.	Wild was sentenced to eight years' detention in a young offender institution for conspiracy to commit grievous bodily harm, and no separate penalty was imposed for conspiracy to commit criminal damage.
5.	Lewis was sentenced to fourteen years' detention in a young offender institution for conspiracy to commit grievous bodily harm, and again no separate penalty was imposed for the criminal damage count.
6.	Cook was sentenced to twelve years' detention in a young offender institution for conspiracy to cause grievous bodily harm, consecutively to two years such detention for unlawful wounding on count 1.  No separate penalty was imposed for the criminal damage offence.  His total sentence was, therefore, as in the case of Lewis, fourteen years' detention in a young offender institution.
7.	There were two co-accused: a man called Grantham, who was convicted on the same indictment as the three applicants of the same conspiracies, namely to cause grievous bodily harm and to commit criminal damage, was sentenced in relation to the first of those offences to five years' detention in a young offender institution.  His application for leave to appeal was refused by the single judge and has not been renewed.  A woman called Rebecca Reeve pleaded guilty to making a false statement, and she was made the subject of a 150-hour community punishment order.
8.	Before us, Docking appeals against sentence by leave of the single judge.  Wild, Lewis and Cook renew their applications for leave to appeal against sentence, following refusal by the single judge.  Lewis also sought leave to appeal against his conviction.  That was refused by the single judge and has not been renewed.
9.	In relation to the indictment involving the three applicants, count 1, the offence of unlawful wounding, occurred on 20th July 2002.  The applicant Cook went with another man to the home of a man called Fletcher and inflicted wounds on him with a weapon.  Fletcher has a number of convictions.  He declined to report the matter to the police.  It appears that the reason for the incident was his earlier relationship, in the spring of 2002, with a 16-year-old girl who later became involved with Cook. 
10.	So far as the second and fourth counts in that indictment are concerned, they took place on 30th/31st August 2002.  
11.	On the 30th, the applicants Cook and Wild, together with another man called Allen, followed Fletcher about during the evening and the early hours of the following morning.
12.	So far as Allen is concerned, although he was initially charged in the same indictment as these applicants, the prosecution were obliged to offer no evidence against him because none of the witnesses who might have implicated him came to court in order to do so.  Thereafter, it appears that he attended the trial of the applicants and sat in court while that trial proceeded.
13.	Allen, Cook and Wild having followed Fletcher about during the evening of 30th August and in the early hours of the following morning, 31st August, were seen about 10 am, together with the applicant Lewis, preparing for some sort of disturbance.  They had between them three weapons: a cosh, a baseball bat and, as transpired in view of what followed, a loaded gun.
14.	Wild drove the three men to Fletcher's house, and those three who had the weapons which we have described put on balaclavas.  They left the car.  They kicked in a side door at Fletcher's premises and, according to the evidence (although for the reasons implicit in what we have already said in relation to Allen, that evidence tended to change from time to time) Cook and Allen entered Fletcher's house.  He had with him his son and three other people.  Wild stayed in the car.  Lewis remained outside smashing car windows.
15.	There was damage done to two vehicles belonging to Fletcher and to his house.  One of the three men (said to have been, in the evidence given at trial, Cook, who was acquitted of attempted murder) went upstairs and shot Fletcher at point blank range, causing wounds to his head at which the firearm was aimed.  He managed to get his arm in front of his head and a bullet lodged in his wrist, causing a fracture which required plating.  The gun then jammed and could be fired no more, but it was used to beat Fletcher about the head.  After that, those who had been in the house and Lewis fled back to the car where Wild was.
16.	Later, police officers stopped a different car driven by Grantham, to whom we referred earlier, and in the car were Cook and Wild.
17.	On interview, Wild and Grantham made no comment.  Cook claimed there had only been an intention, at least on his part, to damage Fletcher's cars.  
18.	Lewis was arrested on 4th September 2002 and initially denied involvement.
19.	Allen was arrested two days later, denied involvement, and, as we have already said, had the good fortune in due course for no evidence to be offered against him.
20.	Turning to the separate indictment which involved the appellant Docking, that reflected the reprisal expedition which took place in order to avenge what had happened to Fletcher.
21.	On 12th September police officers saw Fletcher, Docking and a girl called Cherie Land in a motorcar.  The next day they saw Docking in another motorcar with a woman.  It was parked next to a car in which Fletcher was.
22.	On 22nd September, Cherie Land was given a lift shortly before 11 pm.  She and a girlfriend were picked up by Docking.  About 11 o'clock Docking and Miss Land encountered Lewis and a man called Sully.  They were in a vehicle being driven by a man called Wigley.  Docking pulled his car in front of Wigley's car to block it, but Wigley managed to drive past.  He was followed by Docking.  Miss Land then passed a sawn-off shotgun to Docking and, from a distance of about 2-metres, aiming at Lewis's head, he fired through the window of the car in which Lewis was travelling, and pellets from the gun struck Lewis and Wigley.  Wigley drove off and was chased at speed through the streets of Sheffield, the speeds being up to 100 mph Docking, as we have said, was driving the pursuing car.
23.	Eventually he rammed the other car so that it spun into bollards and stopped.  Docking was heard to shout, "I'm going to shoot you, you fucking bastards.  You're dead, you're dead."  He fired again, again breaking a window in the other car.  He then got out of his car, carrying a gun and a baseball bat, and, after a brief confrontation with the three men in the other car, they, unsurprisingly, ran off fearing for their lives.  The wadding of a 12-bore shotgun cartridge was found inside their recently vacated car.  Docking drove off with the two girls and dropped them off.  The car which he had been driving was later found burnt out in Rotherham.
24.	Docking was arrested on 24th September.  He denied being in the car or being involved in the incident.  He claimed to have been with a girlfriend, who was Rebecca Reeve to whom we referred earlier.  She provided him with a false alibi which she later retracted, and that gave rise to her prosecution for the offence to which we referred.
25.	In passing sentence, the learned judge commented that Cook, Lewis, Grantham and Wild were young Sheffield men without any convictions other than relatively minor convictions, although each of them had, to some, albeit limited, extent, been involved with drugs.  The judge said that, in the light of the evidence which he had heard, he was satisfied that Cook and Lewis were the prime movers and that both of them were aware that a loaded gun was being carried when the visit was paid to Fletcher.  He accepted, for the purpose of sentencing, that their intention was not to kill but to cause grievous bodily harm.
26.	Wild he described as an essential part of the plan in providing transport to and from the scene.  The judge pointed out that Wild had seen the weaponry and the disguises, but he, the judge, was not sure that Wild knew of the loaded gun. That lack of knowledge would be reflected in the sentence passed upon him.  
27.	Grantham had provided a second getaway car.  The judge said that he had doubts about the extent of Grantham's awareness of the violence contemplated in this enterprise: his sentence would reflect this.
28.	Docking was a man with a substantial criminal record as a car thief and burglar.  The judge described him as a career criminal, indifferent to whether innocent people were injured or killed, and very dangerous.  He pointed out that Docking still had some months of a licence period still to run when he set out on the avenging expedition in relation to Fletcher.  He had been convicted by the jury of attempted murder because it was his intention to kill Lewis.  The only reason Lewis had not died was that he had seen the gun in time and ducked.  The fact that no serious injury had occurred could not disguise that this was an offence of great gravity.  The judge also commented on the extremely dangerous manner of driving following the discharge of the firearm.
29.	The judge went on to observe that each of the defendants appeared to be relying on a criminal code of silence and the fact that ordinary witnesses would be too frightened to give evidence.  They were, as the judge said, "nearly right".  Witnesses had been assaulted, threatened and terrified and, although there was no evidence that any of those in the dock was responsible for this, it did show the level of seriousness of the crime which they were involved in.  
30.	The judge also commented, as he was particularly well placed to do, that use of guns on the streets of Sheffield was a comparatively recent feature of life in that city.  It was serious and it was necessary to send out a clear message to those who were involved and who might contemplate being involved in the use of guns that, if they did, they would be taken out of circulation for a very long time to punish them, protect the public and deter others.
31.	Docking's last sentence had been four-and-a-half years' detention in a young offender institute, imposed in June 1999 for burglary and other matters; he was on licence in relation to that sentence at the time of his commission of these offences.  He is 24 years of age.
32.	Wild and Cook are both 21.  Lewis is just 22.  Each of those three has four previous convictions, including offences for drug possession.  None has previously served a custodial sentence.
33.	On behalf of Docking, the written grounds of appeal, supported by oral submission from Mr Gilbert, are, first, that eighteen years for attempted murder was excessive and that the appropriate level of sentencing for attempted murder is shown by the decision of this court in White 13 Cr App R (S) 108, where, following a trial, a sentence of fourteen years was deemed appropriate.  It is to be noted that the defendant in that case was not, as Docking was, on licence at the time of the offence; and, in any event, we expressly reject the proposition that, twelve years after White was decided, it provides appropriate guidance in relation to the use of firearms when the offence is attempted murder.  
34.	We say that because, since White was decided, there has been increasing concern on the part of the public and on the part of the courts about the use of firearms.  That concern can be illustrated, for example, by this court's decision in Avis [1998] 2 Cr App R (S) 178 and the observations by Lord Bingham of Cornhill CJ at the foot of page 185 in the report of that case.  The tariff in relation to the carrying and use of firearms has, by virtue of the authority of Avis and otherwise, increased since White was decided.
35.	Furthermore, it is worth commenting that there are a number of cases of attempted murder to be found in the decisions of this court where a sentence in excess of fourteen years has been regarded as appropriate: for example, Evans and Stroud 16 Cr App R (S) 508; Ellis 16 Cr App R (S) 773; Suckley [2001] 2 Cr App R (S) 313; and Gouldthorpe [2004] 1 Cr App R (S) 248.  
36.	It follows from what we have said that the offence of attempted murder of which Docking was convicted was a serious one.  It follows also that the learned judge was entitled to impose a deterrent sentence, particularly having regard to the position in relation to the use of firearms in Sheffield.  Docking's position was not made any happier by the fact that, as we have already said, he was on licence for the earlier offence at the time when these offences were committed.  That said, we take the view that a total sentence of twenty years in relation to his conduct was excessive.  
37.	What we propose to do is adjust the sentence of twenty years first by quashing the eighteen years which was passed by the learned judge and substituting for it a sentence of sixteen years in relation to attempted murder.  This was not a case, as it seems to us, where, in addition to that very long sentence, a consecutive sentence ought to have been imposed for the offence of dangerous driving.  Consequently, the two-year sentence imposed for that offence by the learned judge will be ordered to run concurrently with the sentence for attempted murder, rather than consecutively to it.  We think it unnecessary to alter the sentence in relation to possession of the shotgun with intent to endanger life.  But the consequence of our judgment is that the total sentence to be served by Docking will be one of sixteen years' imprisonment rather than twenty.
38.	We turn to Wild.  On his behalf, Miss Brickman submits that the sentence of eight years was excessive and not commensurate with an offence of conspiracy to cause grievous bodily harm.  She points out that the learned judge accepted for the purposes of sentencing, that the applicant Wild did not know, of the carrying of the loaded shotgun.  It is submitted in the written grounds that there was some disparity between Wild's sentence and the five years passed upon Grantham.  That can be readily be disposed of because, for reasons given by the judge when he sentenced Grantham, his knowledge of what was going to take place was significantly less than even Wild's.
39.	It is also said in the written grounds that this attack was not drug related.  Whether it was or was not seems to us entirely irrelevant.
40.	We agree with the observation made by the single judge that, although a sentence of eight years on Wild was a severe one, it was not even arguably, manifestly excessive.  Accordingly, Wild's renewed application is refused.
41.	On behalf of Lewis, Miss Brickman submits that the sentence of fourteen years passed on him demonstrates that the judge had started at a wrong and too high starting point.  The applicant Lewis's age, just 22, and his lack of significant convictions were such that he ought to have been treated as being effectively as good character.  Miss Brickman points out, correctly, that the victim Fletcher did not name Lewis as having been inside the house.
42.	It is submitted that he was not the prime mover in the conspiracy and that, in consequence, the sentence which was passed upon him was longer than it should have been.  She accepted, however, that there was evidence which would have supported the judge's conclusion that Lewis was aware that a loaded gun was being carried.  The judge, as is apparent from his remarks, also took the view that Lewis, as well as Cook, were prime movers in the conspiracy.  There was no evidence that Lewis went into Fletcher's house.  As against that the judge was entitled to conclude that Lewis knew that a loaded firearm was being carried.
43.	It is to be observed that Miss Brickman in the court below was, as she told this court, expressly instructed not to advance mitigation on Lewis's behalf.  That, as it seems to us, puts counsel in an extremely difficult position in this court if he or she is required to advance by way of mitigation matters which, for whatever reason, it was not thought appropriate should be ventilated before the trial judge.  This court's role is to address the propriety or otherwise of a sentence passed by the sentencing judge in the light of the information before him.  In consequence, there are great difficulties in the way of an applicant who seeks to advance in this court matters which he expressly did not seek to advance in the court below.
44.	In our judgment, despite Miss Brickman's valiant attempts, there is no reason to regard the sentence passed upon Lewis in relation to his role in these very grave offences as being, even arguably, excessive.  Accordingly, his renewed application is refused.
45.	So far as Cook is concerned, Mr Barradell advances a number of reasons why, he submits, the sentence totalling fourteen years passed upon Cook was excessive.  He sought to submit that there was no basis for the judge's conclusion that Cook was aware that a loaded gun was being carried.  Mr Barradell was constrained to accept that it was the evidence of Mr Fletcher that Cook was the one who fired the gun.  
46.	It is true that that evidence differed from the section 9 statement which Fletcher had originally made in which he had apparently identified both Cook and Allen as coming into his house at the time when he was shot.  We have already referred to the figure cut by Allen in connection with these events and this trial.  It may very well be that the whole of the evidence given by Fletcher was not accepted by the jury.  It may very well be that, for whatever reason, some of the evidence which he gave was by no means truthful.  The question which arises, however, in relation to Cook, is whether the learned judge, bearing in mind the evidence that Cook went into the house and was there when the shooting was carried out and the other evidence in relation to the carrying of three weapons by three men, all of whom wore balaclavas, was entitled to conclude that Cook knew that a loaded gun was being carried.  In our judgment, there was material before the judge which justified that conclusion, although it would have been preferable had he, in the course of his sentencing remarks, spelt out, in a way which he did not, the evidence which supported that conclusion.
47.	It is also submitted on Cook's behalf by Mr Barradell that a sentence of two years imposed consecutively for the unlawful wounding offence was excessive in conjunction with the twelve-year sentence in relation to the conspiracy to cause grievous bodily harm. 
48.	It is apparent from the history which we have rehearsed that the events giving rise to the first count in the indictment constituted a wholly separate incident.  A consecutive sentence was appropriate.  As it seems to us, there is no sustainable complaint against the totality of the sentence imposed upon Cook, nor that a consecutive element in relation to unlawful wounding formed part of it.  Accordingly, the renewed application on behalf of Cook is likewise refused.