No: 200802413/A8 
Neutral Citation Number: [2008] EWCA Crim 1427
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Monday, 9th June 2008

B e f o r e:

MR JUSTICE AIKENS 

MR JUSTICE RODERICK EVANS 
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R E G I N A 

v 

JAMAL RICHARDS
 
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Mr M Donkin appeared on behalf of the Appellant 
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J U D G M E N T 

1.	MR JUSTICE RODERICK EVANS:  On 22nd April 2008, at the Crown Court at Sheffield, the appellant was sentenced by the Recorder of Sheffield to concurrent terms of nine months' imprisonment on two charges of being the owner of a dog which was dangerously out of control.  The charges were in the aggravated form created by section 3(1)(d) of the Dangerous Dogs Act 1991 as each dog had caused injuries to a member of the public.  The appellant had previously pleaded guilty to those charges before the local Magistrates' Court and had been committed to the Crown Court for sentence.  In addition to the custodial terms, the appellant was disqualified from keeping a dog for a period of seven years.  He now appeals against the term of custody by leave of the single judge.
2.	The appellant lived with his partner and young child at Birdwell Road, Sheffield.  It is a mid‑terraced house.  The complainant, Mr Coleman, was the postman for the area.  Because of the location of the appellant's house it was necessary for him to walk through the back yard of the house to gain access to the house next door.
3.	Around the middle of 2007 Mr Coleman became aware that there was a small stocky female pitbull type dog at the appellant's address.  That dog did not cause any problems.  But about three months later a male dog of a similar type appeared.  After the arrival of the second dog, which was more aggressive than the first, the two dogs would jump at the fence in an attempt to get at the postman as he made his deliveries.  On one occasion Mr Coleman spoke to the appellant about the dogs and the appellant promised to chain them.  Mr Coleman also told his supervisors about the problem and they wrote to the appellant.
4.	The aggressive nature of the dogs had also been noticed by neighbours who had complained to the housing association about the dogs.  As a result a letter had been sent to the appellant's partner about them.  An arrangement was made for a hole in the fence to be repaired but the work was not carried out.
5.	On 18th December 2007 Mr Coleman was doing his round.  As he entered the rear yard of a house in Wansfell Road, not far from the appellant's house and which immediately backed on to it, he heard the dogs barking in the yard.  He assumed that they were chained, but he heard one of the bins in the barrier move and he saw the female dog push its way through the gap.  It looked at Mr Coleman and barked.  Mr Coleman ran for the gate of the house which he was delivering at and tried to close it behind him but it would not close and he was followed into the street by the dog.  He put his post bag in the way of the dog and it walked away.  However about ten second later the male dog appeared through the gap.  Mr Coleman continued to make his deliveries and kept an eye out for the dog.
6.	As he was approaching another street the two dogs reappeared and came straight for him.  They were aggressive, barking, growling and lunging towards him.  He used his bag to fend them off.  He jumped into a garden.  The dogs could not get over the garden wall so Mr Coleman jumped across a number of other gardens until he thought it was safe to emerge and continue his deliveries. 
7.	He delivered to one address and the dogs reappeared.  On this occasion they went straight for him.  Mr Coleman tried to hide behind a car but the dogs separated and approached him one from each side of the car and they attacked him.  The female dog bit his left leg and the male his right leg.  Both gripped him and started to shake him.  As he put it in his statement, "ragging him around".  They pulled him to the ground and dragged him across the ground, growling as they did so.  He was in great pain and he started screaming for help and punching out at the dogs.
8.	A passing postal worker stopped his van and tried to help.  He kicked out at the dogs initially but the dogs would not desist.  He described them as vicious.  Ladies from nearby houses came out and hit one with a garden rake and threw food at it.  One of the ladies threw a hammer at the dog and another some hot porridge that someone else had brought out, but even this did not make the dogs desist.  They continued to tear at Mr Coleman's leg.  One of the ladies described the dogs as savaging Mr Coleman.  Workmen appeared and one of them hit one of the dogs with a metal bar but again the dog would not let go.
9.	Mr Coleman's estimate of the length of this attack was that it lasted something in the order of 15 minutes.  Eventually the dogs released him and ran away, but they had dragged him about 15 feet along the road.  He had open wounds on his leg and right arm.  He sought refuge in his colleague's van until the ambulance arrived.  He was then taken to hospital.
10.	This attack resulted in him spending some six days in hospital.  He had two operations for his injuries, one which involved skin grafts.  He sustained deep lacerations to both legs, around his right knee and left forearm and puncture wounds to his chest.  It was thought that he would have reduced mobility in his leg and right arm.  He required physiotherapy.  He was told that it would be at least six weeks before he could walk properly.  He was permanently scarred.
11.	The male dog was later seen outside the appellant's address.  The appellant was roused from his bed about 11.15 that morning.  He confirmed that the dog was his and that that dog and the female dog should have been in the yard.  He was arrested.  The female dog, which had run off from the scene of the attack, has not been seen since.
12.	In interview he admitted that he kept both dogs.  He said that they had not gone for humans before but had had fights with other dogs in the park.  He said that their temperaments were normally all right because they had broken out before but had never done anything like this.  He said he could put them on chains to prevent them getting out but he was not allowed to keep them chained all the time because the RSPCA would object.  He said he had put a couple of bins in front of the fence but they had just pushed the bins back and gone through the fence.  He said that he had never knowingly let his dogs out in public on the road and that he had last seen the dogs in the garden at about midnight the night before.  He consented to the destruction of both dogs.
13.	We have seen photographs of the injuries sustained by Mr Coleman and we have seen images, therefore, of the permanent scarring with which he is left.
14.	The appellant was 19 years of age.  It follows that any term of custody imposed upon him should have been a period of detention and not one of imprisonment as the recorder imposed.  The appellant has no relevant previous convictions and the pre‑sentence report, which was before the recorder, spoke of the appellant's genuine and deep remorse for the injuries for which he felt responsible.
15.	In passing sentence the recorder acknowledged the appellant's age and the fact that his guilty pleas were entered at the first opportunity but he concluded that an immediate custodial sentence was necessary.
16.	The initial submission on paper was that a suspended term would have been appropriate in this case but that has not been pursued before us.
17.	Counsel has drawn our attention to the case of R v Cox [2004] 2 Cr App R 287 where some assistance was given to sentencers faced with cases such as this.  An important factor in sentencing for the aggravated form of this offence is the nature of the consequences to the person injured.  In this case those consequences were serious.  However, we think that nine months was unnecessary, given the appellant's mitigation and his pleas.  We intend to quash the period of nine months.  The appropriate sentence in our view is one of four months.  That, of course, will be a period of detention in a young offender institution.  To that extent this appeal is allowed. 
18.	MR JUSTICE AIKENS:  There will be no recovery of defence costs.  Mr Richards, you must understand that the order preventing you from owning a dog for seven years continues and that if you are in any breach of that it will have serious consequences.