England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 4th December 2003

4th December 2003

1. MR JUSTICE OWEN: On 17th June 2003 the appellant was convicted of an offence of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 and on 31st July was sentenced to a term of two and a half years' imprisonment.
2. He appeals against that sentence with the leave of the single judge.
3. In October 2002 the appellant, who was then 33 years of age, was an in-patient in the Department of Psychiatry at the Royal South Hampshire hospital. He suffers from paranoid schizophrenia and what is described as an antisocial personality disorder.
4. On the morning of 10th October 2002 he was involved in an argument with a fellow patient, a Mr A., whom he accused of stealing £10 from him. Later that day A. was leaving the ward day room as the appellant was entering it. As they passed each other, Mr A. lifted a newspaper in an apparently protective gesture and the appellant punched the back of his head. Mr A. fell against the wall, colliding with a tall pot plant and twisting and falling on his left leg. In consequence he suffered a fracture of the tibia and fibia on the left side.
5. In passing sentence upon the appellant His Honour Judge Boggis had clearly in mind the psychiatric condition from which the appellant suffers. He quoted from the pre-sentence report from Mr Slue, whom he described "as one of the most experienced and realistic probation officers who writes reports for this court", and who made the following assessment of the appellant:

"Basing my assessment solely upon what is known about the present offence, the nature of some of the defendant's earlier offending, and my conversation with Mr B., my fear is that Mr F. is a person clearly capable of considerable violence and devoid of the normal constraints which preclude those of us who do not suffer with the illness and conditions he does from indulging in acts of physical violence, on this basis I believe there is reason to believe Mr F. does represent some unspecified level of risk of harm to others. On the same basis I am resigned to the view that the commission of further offending (everything remaining as it is) is probably inevitable."

6. Mr Slue added in his report to the court:

"Whilst I fully support the view that custody at this juncture resolves no difficulties but might well create even more further problems, I do feel that Mr F. needs to be made aware of just how precarious his position is and just how seriously his wrongdoing is viewed as being by the court."

7. His Honour Judge Boggis also quoted from a report from a consultant psychiatrist, Professor Kingdon, who said in his report:

"He does seem to have appreciated that he is facing a very serious charge and the process has, I believe, been a salutary lesson to him about the importance of controlling his impulsive behaviour. As stated previously, I believe that a custodial sentence would be seriously detrimental to him in terms of his mental health, both by the direct effect of being imprisoned, which would increase his paranoid symptoms and is likely to destabilise further his mental state and also because he is now living in accommodation and has done so for the past few months relatively successfully."

8. Those extracts from the reports of Mr Slue and Professor Kingdon bring into high relief the sentencing problem faced by the learned judge. As he said in the course of passing sentence:

"Plainly a sentencing exercise in your case is one which involves balancing your position and the position of society as a whole. Your position is that custody might cause you damage, would make you harder to assimilate into society when you come out, and I accept that with your mental state custody would be very difficult for you to bear. On the other side I must look to protecting the public. I cannot ignore what Mr Slue says, which is that the commission of further offending is probably inevitable, and even more seriously that he says you are a person clearly capable of considerable violence."

9. There are two strands to the submissions made by Miss Jones, who appears for the appellant, in her advice on appeal. First, she submits that the learned judge gave little or no weight to the evidence contained in the medical and pre-sentence reports as to the likelihood that a custodial sentence would have the effect of destabilising the appellant and, whilst protecting the public in the short term, would in consequence present a much greater threat to the public on his release. She submits that there were exceptional circumstances in which it would be appropriate for any sentence of imprisonment to have been suspended. The second strand to her argument is that the sentence was manifestly excessive, given that the appellant delivered a single punch and that the injury, whilst serious, was accidental in the sense that it was not intended.
10. In our view a sentence of two and a half years' imprisonment for an offence under section 20 involving a single punch which had the unintended consequence of causing the victim to fall in such a way as to break his leg was too high. Some guidance as to the appropriate level of sentence in this case is afforded by the approach of the courts to the so-called one punch manslaughter cases.
11. In R v Gratton [2001] 2 Cr App R(S) 167, the Court was referred to the authorities relevant to sentencing in the one punch manslaughter cases, an analysis which demonstrated, as Tuckey LJ put it, a starting point on a plea of guilty in the region of 12-months.
12. In this case the appellant committed a nasty and unprovoked attack with serious consequences. We take full account of his medical condition and of his plea of guilty. In our judgment, the appropriate was one of 15-months imprisonment.
13. We return then to the first limb of the appellant's case, namely, that there were exceptional circumstances warranting the suspension of the sentence. The sentencing judge had the difficult task of weighing the protection of the public from the risk identified in the pre-sentence report against the evidence that the appellant's condition would be destabilised by a custodial sentence. But in our judgment he cannot be said to have erred in principle in arriving at the conclusion that the balance weighed in favour of a custodial sentence. We are not persuaded that the sentence ought to have been suspended.
14. Accordingly, this appeal will be allowed and we substitute for the sentence of two and a half years' imprisonment a sentence of 15 months' imprisonment