Jake Cagna & James Stephen Fowles [2019] EWCA Crim 907

Jake Cagna and James Stephen Fowles v R [2019] EWCA Crim 907 concerned appeals against sentence by two appellants convicted of offences arising from a violent street incident, each seeking to argue that their custodial sentences should have been suspended.

On 14 February 2019 at Chester Crown Court, Mr Cagna pleaded guilty to assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861 and Mr Fowles pleaded guilty to affray contrary to section 3(1) of the Public Order Act 1986. On 26 March 2019, His Honour Judge Berkson sentenced Mr Cagna to 16 months’ imprisonment and Mr Fowles to eight months’ imprisonment. Both appealed with leave granted by the single judge on the basis that it was arguable the sentences should have been suspended.

In the early hours of 20 May 2018, at around 2.00 am in Middlewich, the complainant Mr Hickey and his girlfriend Ms Cooke were returning home when they were intercepted at the gate of their property by Mr Fowles. He blocked their entry with words to the effect of “Where the fuck do you think you’re going?” Within moments another co-defendant, Shane Smalley, and another male arrived. Mr Smalley confronted Mr Hickey and produced a chain with which he struck Mr Hickey in the face. A car driven by Mr Cagna then arrived carrying four passengers. Mr Cagna and the passengers exited the vehicle. Two female passengers confronted Ms Cooke whilst Mr Cagna went towards Mr Hickey and began attacking him. At one stage Mr Hickey was attacked by a group of four or five people. He was forced to the ground and Mr Cagna stamped on him once around the head whilst Mr Smalley kicked at his legs. Mr Hickey’s companions attempted to assist him and Mr Fowles then helped Mr Hickey to his feet and carried him to the gated area. However, Mr Fowles subsequently remonstrated with Ms Cooke, who had previously been in a relationship with his brother, saying “This is because of what you’ve done to Dean” before being pulled away. Mr Hickey was a haemophiliac and required emergency treatment at home before being taken to hospital. His main injury was a blow to the right side of his face, though it was unclear whether this resulted from the assault or the chain. He remained in hospital overnight.

The judge treated Mr Cagna’s case as falling within category 1 of the relevant guideline. He identified as aggravating features the location and timing of the offence in the town centre in the early hours of the morning and in front of the victim’s partner and other bystanders. He described the incident as an ugly scene of group violence which left a man battered and bruised after a repeated attack. The judge stated that the sentence after trial would have been 30 months, reduced to two years to reflect Mr Cagna’s personal mitigation including no relevant convictions, employment and stable home life. With full credit for the guilty plea entered at the earliest opportunity, the sentence of 16 months was imposed. The judge considered suspension but concluded that the offence was too serious to justify it. He observed that there was no need for Mr Cagna to stop his car but he did so and involved himself in violence after it had started, joining a group attack on Mr Hickey, causing him to fall to the ground and stamping on him in the head area when he lay defenceless as part of the group attack.

In respect of Mr Fowles, the judge found that he was involved at the start and end of the incident and issued threats as part of group violence in a public place, though he acknowledged that Mr Fowles did not strike any clear blows and at one point tried to help the victim. The judge stated that after trial the sentence would have been 12 months, reduced to eight months with full credit for the guilty plea.

Mr Cagna was aged 23 with no relevant previous convictions. Mr Fowles was aged 28 and had appeared before the courts on 12 previous occasions for 17 offences between 2007 and 2017. These included an offence of affray in 2009 for which he received six months in a Young Offender Institution, a racially aggravated assault in 2011 resulting in three years in a Young Offender Institution, and a more recent battery conviction that did not attract custody.

On appeal, Mr Wilson for Mr Cagna and Mr Connor for Mr Fowles argued that the sentences should have been suspended. They relied on factors identified in the guidelines as potentially supporting suspension, namely strong personal mitigation and significant harmful impact of sentence on others.

The Court of Appeal emphasised that the guidelines indicate that a factor operating against suspension is that appropriate punishment can only be achieved by an immediate sentence. The court held that in the case of someone who actively engages in or encourages significant and unprovoked violence, particularly in a public place at night and in front of others, it would require fairly exceptional circumstances to justify suspending any sentence of imprisonment because appropriate punishment could only be achieved by immediate custody.

In relation to Mr Cagna, the court acknowledged that he had got involved when there was absolutely no reason to do so, that he brought the victim to the ground and stamped on him, and that it was fortunate no greater harm resulted. The court accepted that the offending was very surprising given his lack of previous convictions, good job and stable home life. The court also accepted that he was sincerely remorseful, that the offending was out of character, that he posed a low risk of reoffending and that prison would be a significant punishment for him. Nevertheless, the court agreed with the judge that there was no alternative to immediate custody given the circumstances. The sentence length was held to be entirely within the guidelines and could not be criticised.

In relation to Mr Fowles, the court noted that he was present at the start of the incident and played a part in causing it to start, though he used no violence himself and at one point went to the victim’s assistance. However, he was instrumental in starting the episode and had previous convictions for violence. The court observed that he should have known the consequences of getting anywhere near such an incident given his history. The court accepted there was a credible suggestion that he was beginning to realise he must not become involved in such incidents and treated as a positive factor his assumption of personal responsibility recently, particularly in relation to his terminally ill grandmother. The court also accepted his genuine remorse. However, these factors did not obviate the need for an immediate custodial sentence for the same reasons as in Mr Cagna’s case, given that this was ugly street violence.

In short, both appeals were dismissed, the court holding that immediate custody was appropriate and inevitable for both appellants notwithstanding their personal mitigation given the seriousness of unprovoked group violence in a public place at night.