England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		9 November 2007

LADY JUSTICE HALLETT: I shall ask Mr Justice King to give the judgment of the court.

MR JUSTICE KING:

1. This is an appeal with the leave of the single judge against an extended sentence of imprisonment imposed pursuant to the provisions of section 227 of the Criminal Justice Act 2003.
2. The appellant is 36 years of age. Apart from a caution for common assault in November 2003 and a minor motor car offence in 1989, prior to the matters with which this court is concerned, he was a man of good character. The judge in the court below described him as "very lightly convicted".
3. This case concerns domestic violence. The appellant has been married to his wife, Tracey Woolston, for seven years, although they have been together for fourteen. Between them they have five children. In about 2002 she was involved in a road traffic accident in which she suffered serious injuries, including the amputation of her right leg below the knee. The appellant gave up his full-time work as a machine operator to become her full-time carer.
4. On 5 June 2007, in the Crown Court at Sheffield, the appellant pleaded guilty at a plea and case management hearing to three counts on an indictment, alleging different offences of violence. They were all committed in the course of a prolonged incident of domestic violence against his wife and others at the family house in the early hours of the morning of 2 February 2007. This followed his return home from an engagement party with his wife and his wife's friend, Kelly Cook, a 19 year old lady. It was accepted that the appellant had pleaded guilty at the first opportunity and at a time when his wife had made a retraction statement. The judge said that he would receive the maximum credit for his plea.
5. In her initial statement to the police the appellant's wife described her relationship with the appellant as having always been violent. She said that the police had attended at their home address on 20-30 occasions. She described how the appellant had been on an Anger Management Parenting Skills Course as a result of assaulting her teenage son, for which the appellant had received the caution referred to. Despite that course, the violence had started again. It culminated in the incident for which the appellant now fell to be sentenced.
6. Sentence was subsequently passed by His Honour Judge Keen QC on 3 July 2007 at the same Crown Court as follows: on count 1, for assault occasioning actual bodily harm committed against his wife, the appellant received an extended sentence of three years pursuant to section 227 of the Criminal Justice Act 2003, comprising a custodial term of twelve months and an extension period (that is an extended period of licence) of two years; on count 2, for an offence of battery committed against Kelly Cook, three months' imprisonment concurrent; on count 3, for an offence of common assault against Brannan Cook, three months' imprisonment concurrent. Brannan Cook was the brother of Kelly Cook.
7. As regards the circumstances of, and the setting for, these offences the judge in his sentencing remarks summarised the position thus:

"You and your wife have to realise that this case is not just about the two of you. It has wider implications. There are two other victims in this matter and the public are extremely concerned about domestic violence. In this case there is a history of such violence and your wife is particularly vulnerable because not only does she suffer from depression but she is disabled and only has one complete leg. That did not stop you assaulting her with your fists and a makeshift weapon persistently and then adding two other victims when they sought to intervene."

In the pre-sentence report the probation officer encapsulated the events of the material evening in these words:

"Clearly Mr Woolston's actions on this evening resulted in four separate victims being either injured or alarmed in some way, including his stepson."

8. We have no doubt that these are fair summaries both of the facts of the particular evening and the background history spoken of by Tracey Woolston in her initial statement. The makeshift weapon referred to was a piece of wooden skirting board. The source of alarm caused to Kelly Cook's son, which gave rise to the charge of common assault, was the brandishing of a 12 inch kitchen knife.
9. We turn to the facts of the evening in question in a little more detail. The appellant, his wife and Kelly Cook had returned to the house at about 1.45am. They were all affected by drink. At about 2.30am there was an exchange between the appellant and his wife. The appellant became verbally aggressive, apparently through jealousy. He went upstairs. His wife heard banging and went upstairs to find that the appellant had thrown her make-up about the room. She remonstrated with him, whereupon the appellant got out of bed. He was abusive. He approached her and punched her. He punched her to the head a number of times. He called her a "fucking whore". At one point she was crouching over to protect herself and she felt another three punches to her back and her head. She said, "This doesn't bother me no more". The appellant said, "It fucking will bother you". At some stage she was pushed from behind and propelled into her son's bedroom. She returned to her own room, but the appellant followed carrying a piece of wooden skirting board with which he struck his wife over the top of the head. The sound of the impact was heard downstairs by Kelly Cook.
10. The appellant's wife went downstairs to ring the police, but she was followed by the appellant who grabbed the telephone from her. Kelly Cook then tried to intervene. She told the appellant to leave his wife alone. His response was to tell her to get out of his "fucking house". He grabbed Kelly Cook by the hair and threw her to the floor. He then pulled his wife by the hair so that she fell on top of Kelly Cook. Kelly Cook ran out of the house into the street shouting that she would get her brother Brannan, to which the appellant shouted, "Go get all the Cook family. I'll do them all!"
11. The appellant stood over his wife saying he was "going to smash your fucking head in". The appellant's 14 year old stepson, who had come downstairs after hearing the commotion, saw the appellant standing over his mother who was still on the floor. The appellant had a vase in his hand and was shouting, "I'm going to wrap this round your head. If I get locked up, I'll get out tomorrow, a week or a couple of months and then I'll do something to you". The boy told the appellant not to hit her, to which he replied, "Are you standing up to me?"
12. Kelly Cook came back into the house with her brother to fetch her belongings. Tracey Woolston appeared to be unconscious. The appellant, on seeing Brannan Cook, went into the kitchen and obtained a 12 inch kitchen knife which he pointed at Brannan Cook and shouted at him to get out of the house. As Kelly Cook and her brother left, the appellant shouted, "I'll do you all".
13. The police arrived. The appellant tried to prevent their entry but was detained after a struggle in which a debilitating spray was deployed.
14. Tracey Woolston sustained bruising to her forehead and the top of her head. Initially, she said that she did not want the appellant back at the address because he would continue to put her and the children in danger. In her initial Victim Impact Statement she said that the appellant was a major factor for her depression and panic attacks. Her children were scared because of his violence and drink. In that statement she said this:

"I think it is time to put a stop to it because in the past I have always withdrawn the complaint."

In the event Tracey Woolston ultimately made a retraction statement, which we have read.

15. Kelly Cook sustained pain to her neck and bruising to her left ankle. She said that she had heard about the appellant, but "was shocked and scared when I saw it firsthand. I was very scared because he pulled a knife on us".
16. In interview the appellant denied the assaults. He said that it was his wife who had assaulted him when drunk and she had banged her head on a set of ladders leading into the attic. All those who alleged assault against him were said to be liars. There was no violence at the house. He had picked up the knife because he had felt threatened by the presence of Brannan Cook at the door. However, on his way to being charged he said, "I know I've done wrong".
17. The pre-sentence report indicated that the appellant accepted some responsibility for his actions and a limited amount of personal domestic violence in the past. However, according to the author, the appellant portrayed little remorse for his behaviour towards any of his victims. He had a tendency to minimise his actions and to put a lot of blame on his wife and her mental illness. The ultimate assessment of the pre-sentence report was that the likelihood of re-conviction was low. The author was concerned at the appellant's minimisation of his behaviour. The author assessed the appellant as being "a medium risk of harm to a known adult, but a low risk of harm to the general public and the children". It was suggested that any custodial sentence might be suspended.
18. We turn to the issues raised by this appeal. It is common ground that the assault occasioning actual bodily harm is a specified but non-serious offence for the purposes of the dangerous offenders provisions of the Criminal Justice Act 2003. Hence the judge was entitled, and indeed obliged, to pass the sentence he did if, but only if, he considered there was "a significant risk to members of the public of serious harm occasioned by the offender of further specified offences". As this court said in R v Lang [2006] 2 Cr App R(S) 3, [2005] EWCA Crim 2864 , at paragraph 17(i), by "serious risk" is meant "a higher threshold than mere possibility of occurrence -- something which is noteworthy of considerable amount or importance". "Serious harm" is defined in the statute in section 224(3) as meaning "death or serious personal injury, whether physical or psychological". Section 229(2)(a) of the Act provides that, in addressing the assessment of risk for these purposes where there are no prior specified offences, the court must taken into account all such information as is available to it about the nature and circumstances of the offence. In addition, it may take into account any information which is before it about any pattern of behaviour of which the offence forms part (subsection (b)) and may take into account any information about the offender which is before it (subsection (c)).
19. The judge in this cases found that such a risk existed. He did so using the following words:

"I take the view that it is far too serious for anything other than a custodial sentence. I am under a duty to assess in this case the risk of further offending by you and, as best one can, the nature of that further offending. Given what I know about the history of this relationship, I take the view that there is a very high risk that you will commit further offences of violence against your wife. Once you had assaulted her, or during the course of it, you threatened further violence towards her if you found yourself being apprehended. I do not think that those were idle threats. You have shown little remorse for what you have done and it is clear to me that it is purely good fortune that your wife's injuries were not more serious.

Given everything I know about this case, I think not only will you re-offend but that offending would result in serious injuries to your wife potentially and I take the view that something therefore needs to be done to try and limit that. You are dangerous within the meaning of the Act so far as your wife is concerned."

20. We turn to the grounds of appeal. It is said that the sentence is wrong as a matter of principle on the ground that there was no proper basis for the judge's findings of dangerousness. It is stressed that the appellant had no previous convictions of any relevance, other than a caution for common assault in November 2003, and that the statutory assumption of dangerousness in section 229(3) of the 2003 Act was not engaged. It is stressed that no serious harm was caused in the instant case. The wife, though punched, received bruising only. She had not reported any injury and had not sought medical treatment. It is further said that in making the findings he did the judge failed to have sufficient regard to the appellant's plea and therefore remorse in the face of the retraction statement of his wife, or to the positive matters stated in the retraction statement, where the wife spoke of a good, strong relationship and acknowledged the pressures put upon the appellant by her accident and subsequent depression. She spoke of the appellant as "trying to hold things together". She said he was "a wonderful father and granddad". These points were reinforced by her in a letter dated 16 March 2007 which is before us and was before the court below.
21. Complaint is made that the judge ignored the reduction of risk of future harm to the principal person against whom future harm was envisaged, namely the appellant's wife, brought about by the desire of the appellant and his wife to rebuild their marriage. It is said that the judge placed too much reliance on remarks made by the appellant at the time of the incident which, although serious, were no more than those of a drunken man losing his temper. It is further said that the judge relied too heavily on the past incidents of domestic violence spoken of by his wife, because the appellant had denied a lot of them. Reliance is placed on the opinion as to risk of the probation officer who, although concerned at the minimisation by the appellant of his conduct, had recommended that any custodial sentence be suspended. Alternatively, it is said, the period of extension was manifestly excessive in all the circumstances.
22. We turn to our approach to this appeal. As this court made clear in R v Johnson [2006] EWCA Crim 2486, the dangerous offenders provisions are concerned not with punishing the offender for past offending but are aimed at protecting members of the public from future risk of the kind identified. This court will not normally interfere with conclusions as to risk reached by a sentencer who has identified the relevant principles and applied his mind to the relevant facts. The essential question to be answered by this court is whether the imposition of a sentence was manifestly excessive or wrong in principle.
23. Mr Brooke on behalf of the appellant has nonetheless submitted that for the reasons set out in his grounds and amplified before us, on the material before the judge, although there may have been a significant risk of some future harm, the risk was not one of serious harm as defined in the Act. In his original written submissions Mr Brooke went as far as to say that although there was a risk of some future harm, even that risk was not significant. Mr Brooke says that this is not a case as in R v O'Leary [2006] EWCA 2943, to which we were referred. In O'Leary the behaviour had not been an isolated offence, but a pattern of behaviour where the conduct, although not always constituting actual violence, had involved very worrying threats. Mr Brooke submits that the present case on the facts can be distinguished from O'Leary. Mr Brooke suggests that if the judge in this case were right it would mean that in the vast majority of cases involving domestic violence, even where, as here, there had been no prior conviction, a disposal by way of an order under the dangerous offenders provisions would be necessary. He suggests that this cannot be right.
24. In support of his contentions Mr Brooke prayed in aid those well-known passages of this court in Lang, in which guidance was given on how the court should approach the assessment of risk in cases such as these, and where the court distinguished between cases where the foreseen specified offence was a serious one and those where it is not serious. Where the offence was not serious, this court said that there would be comparatively few cases in which a risk of serious harm could properly be regarded as significant: "Repetitive violent offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future" (see Lang at paragraph 17(iv). However, Mr Brooke accepted that the further guidance given in Johnson was also relevant, that is to say the guidance which emphasises that it is not a pre-requisite to a finding of dangerousness that the offender should have relevant previous convictions. It does not automatically follow from the absence of serious harm caused by the offender in the offence for which he falls to be sentenced, or in any past violent conduct, that the risk he will cause serious harm in the future is thereby to be assessed as negligible. The absence of serious harm in relation to a particular offence may, when the facts and the circumstances of the offence are examined, have been entirely fortuitous. This was obviously the considered view of the judge in this case in relation to the appellant's domestic violence against his wife which gave rise to the charge of assault occasioning actual bodily harm.
25. We have considered carefully the well rehearsed submissions of Mr Brooke, but ultimately we have no doubt that the conclusion reached by the judge was one to which he was entitled to come on the material before him. It is not one with which this court should interfere. We do not consider that the judge did not identify the relevant principles or apply his mind to the relevant facts. The judge may not on carrying out that exercise have reached the conclusion that Mr Brooke had urged upon him, but that is a quite different issue. The judge was entitled to have regard to the history of domestic violence spoken of by Tracey Woolston. It is unreal in the context of this case to think otherwise. A pattern of domestic violence in which the victim persistently issues retraction statements is, unfortunately, an all too familiar one. The judge had the retraction statement before him. He had the letter of 16 March 2007 before him. It was open to him to conclude that nothing in that material, or in the commendable steps taken by the appellant and his wife to rebuild their marriage in truth altered the reality that the appellant posed a significant risk to his wife of serious harm by future re-offending. It was for the judge to make his own assessment of the reality of the appellant's expressions of remorse. The judge was not bound by any assessment of risk by the probation officer, although rightly he did pay regard to it.
26. In stressing the passages in Lang which deal with specified, non-serious offences and in submitting as he did in writing that although Johnson clarified Lang, it did not take away the very real point that where the offence is a specified offence it would be rare for an extended sentence to be passed, Mr Brooke has perhaps misunderstood the point being made in Lang. The court there was dealing with the nature of the offences which the judge making the risk assessment foresaw would occur in the future. It was not dealing with the nature of the offence of which the offender had been convicted, such as the present assault occasioning actual bodily harm which fell to be considered for an extended sentence, which by definition under section 227 has to be a non-serious one. We do not read the judge's conclusion as finding that the only offences likely to be committed in the future by this appellant were specified but non-serious. The judge patently took the view that it was purely fortuitous that in the early hours of the morning of 3 February the appellant's wife had not suffered much more serious injury and that a repetition of such conduct in the future, of which there was a significant risk, could well have far more serious consequences. This, in our judgment, was a conclusion to which the judge was fully entitled to come. It must not be forgotten that this was a case in which the appellant had armed himself with two weapons: a makeshift one (a piece of skirting board) and the other, a 12 inch kitchen knife. On the evidence before the judge, which he was fully entitled to accept, the appellant had used the one (the skirting board) and made threats with the other -- and indeed had made threats with a vase. The judge's evaluation of the genuineness of the threats made by the appellant on the night was one with which this court could not possibly interfere. Nor must it be forgotten that the events of 3 February amply demonstrated the obvious potential for the appellant's violent conduct to embrace not simply his wife but other members of the public and his own children.
27. In our judgment the judge in this case properly applied the factors on assessment of risk which are set out in section 229 of the Act. He identified the relevant principles, he applied his mind to the relevant facts and his assessment of risk was one to which he was fully entitled to come. It follows that the appeal against the extended sentence as being wrong in principle is dismissed.
28. We turn to the issue of the extension period. In his written submissions Mr Brooke made the point that for an offence of assault occasioning actual bodily harm an offender might ordinarily serve six months. But in current conditions the sentence to be served with a two year extension period may well be six times longer. He referred us again to O'Leary which he submitted involved a more serious set of facts and where the court reduced a three year extension period to two years.
29. However, the test which the judge had to apply in determining the extension period is set out at section 227(2)(b) of the 2003 Act. It is "a further period ('extension period') for which the offender is to be subject to a licence which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences". We have no doubt that in the circumstances of this case the judge was fully entitled to say that members of the public, and the appellant's wife in particular, required protection for two years for the stated purpose. We dismiss the appeal in relation to the extension period.
30. Understandably there is no appeal against the custodial term of twelve months.
31. For all these reasons the appeal against sentence is dismissed.

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