A sentence of two years for causing grievous bodily harm with intent and violent disorder was unduly lenient given the defendant acted as part of a gang. A sentence of three and a half years would be substituted.Application by the Attorney-General to refer, under s.36 Criminal Justice Act 1988, a total sentence of two years for causing grievous bodily harm with intent and violent disorder. The defendant ('J') was convicted at Harrow Crown Court on 28 October 2002 and was sentenced on 25 November by HH Judge Sich. J was part of a group of six men who on 15 June 2001, were involved in a verbal altercation with three young men outside a train station. J's group said "we are gangsters - we are Tamil tigers." They ran off calling "we will chop you with axes" J actively participated. Shortly after they returned carrying two axes. One of the group of victims was hit on the head by the axe and when he fell to the floor he was hit again on his thigh causing extensive injuries, the other two victims were punched and kicked. J did not have an axe but returned to the scene with the others and was nearby when they were attacked. J was arrested and gave no comment interviews, following charge he gave a prepared statement admitting presence at the first meeting but only as a peacemaker. He stated he had not been present at the second attack. At trial he admitted that had been a lie. The Attorney-General referred the sentence as unduly lenient given the aggravating features: (i) the attack involved axes; (ii) the attack involved a group as a gang; (iii) the gang deliberately went away to arm themselves; (iv) the violence was unprovoked and the victims were unarmed; (v) the victim hit with the axe suffered grave injuries which had lasting effects; and (vi) Harrow had a prevalence of incidents involving young males with weapons like axes. In mitigation was his young age (21) and he had no previous convictions. When sentencing the judge accepted J took part in a joint enterprise and must have been aware it was a revenge attack but said that J might have been unaware there were axes.HELD: (1) The conduct of J, notwithstanding that he neither carried a weapon nor delivered a blow, was serious because he was a member of a gang of six. When sentencing the judge made reference to the fact that a sentence of seven years would have been appropriate if one of the axe wielders had been in front of him. That was correct, however, the discount given by reference to J's participation was far too great. The jury's conviction was simply not capable of being interpreted that J was unaware a weapon would or might have been used. (2) A sentence of four and a half to five years would have been appropriate in the court below and therefore the sentence passed was unduly lenient. The sentence of two years for grievous bodily harm would be quashed and a sentence of three and a half years would be substituted to run concurrently with the two years for violent disorder.Leave to refer granted, application allowed.

[2003] EWCA Crim 1909