England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22 October 2008

1. Mrs Justice Swift: In March of this year the appellant was tried at Harrow Crown Court for an offence of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. At the conclusion of the trial, on 12 March 2008, he was acquitted of that offence, but convicted by the jury of an alternative count of unlawful wounding contrary to section 20 of the 1861 Act. He was sentenced on 29 May 2008 to an extended sentence of five years pursuant to section 227 of the Criminal Justice Act 2003 ("the 2003 Act"), that sentence comprising a custodial term of three years' imprisonment and an extended period of licence of two years. Pursuant to section 240 of the Criminal Justice Act 2003 the 255 days spent in custody on remand were ordered to count towards sentence.
2. The appellant appeals against sentence by leave of the single judge.
3. In the afternoon of 15 September 2007 Shaun Hughes, who is the appellant's brother, was watching football with friends in a crowded public house in north London. The appellant entered the pub, went over to where his brother was standing and delivered a powerful blow to his face. There was then a short scuffle after which the appellant left. The bar staff administered first aid to Shaun Hughes and an ambulance was called. He was taken to the Central Middlesex Hospital where he was treated for two lacerations to his forehead, one of about 2 inches long which required ten stitches. This was apparently caused by sunglasses which he had been wearing. Shaun Hughes said in evidence that he had made a complete recovery, although the judge was of the opinion that he was would have a permanent scar.
4. The appellant was later arrested at another public house nearby. In interview he made no comment to all material questions, save for saying that his brother had a history of making false allegations against him.
5. At the time of the offence the appellant was 42 years old and usually worked as a self-employed carpenter while living in private rented accommodation. He had 16 previous court appearances for 33 offences. Between the ages of 18 and 24 he was regularly before the courts, often for offences of violence. During that period he was convicted of three offences of assault on the police, four offences of assault occasioning actual bodily harm, one aggravated common assault and one offence of possessing an offensive weapon in a public place. There were other convictions for public order offences, criminal damage, obstructing the police and offences of dishonesty. Between 1989 and 2000 he did not appear before the courts at all. In August 2000 he was fined for having a bladed article in a public place. Since then he has had convictions for driving offences and for possession amphetamine. Significantly, however, he was conditionally discharged for an offence of criminal damage committed in March 2001 having damaged his brother's motor cycle in retaliation for a some perceived wrong perpetrated by his brother.
6. Then, in October 2006, he was sentenced for another offence of criminal damage and for common assault. These offences were committed in the course of an argument about his brother which took place at his parents' home. He caused damage to his brother's bedroom door by kicking it and assaulted his father by grabbing his wrist. He received a community order with a requirement that he attend an aggression replacement therapy programme. This order was revoked in April 2007 since the appellant had been diagnosed with bowel cancer and was undergoing treatment which prevented him from complying with the order. A conditional discharge was substituted. The offence with which we are concerned was committed during the currency of that conditional discharge. Also, at the time of the offence with which we are concerned, the appellant was on bail in connection with other matters which were tried by the Crown Court in September of this year. We are told that those matters ended in acquittals.
7. There was a pre-sentence report before the court. The author reported that in discussion with her the appellant continued to assert that he had acted in self-defence, having been attacked by his brother and his brother's friends. He described a relationship with his brother which was hostile and at times explosive. He blamed his brother for the difficulties between them, describing him as a thief, drug dealer and compulsive liar. Whilst he admitted some culpability for the offence and was able to express some remorse about the injuries caused to his brother, he minimised the extent of his involvement, projecting most of the blame onto his brother.
8. The actuarial risk assessment tool used by the probation service suggested that the appellant posed a medium risk of committing further violent offences. However, the author of the report cautioned that the risk may be higher than the assessment tool suggested given what she described as the appellant's established pattern of offending and the escalation in seriousness and frequency of his offending. Having regard to those matters, and in particular to his previous convictions for assault occasioning actual bodily harm, she assessed him as posing a high risk of harm to the public, specifically his brother, and suggested that the court might consider a finding of dangerousness within the meaning of the 2003 Act and the imposition of an extended sentence for public protection. She recommended that while in custody the appellant should undergo various programmes designed to enable him to control his anger, improve his thinking skills and develop a better understanding of the impact of his actions on the lives of others.
9. Shaun Hughes had told the police that the appellant had been acting strangely for some years as a result of which an assessment of his mental state was made by Dr David Oyewole, consultant psychiatrist. His report, dated 20 April 2008, was before the sentencing court. Dr Oyewole interviewed the appellant, spoke to his girlfriend and his solicitor and examined his prison reports. He found no evidence of any mental illness.
10. When sentencing the appellant the judge said that the jury's verdict indicated that they were perfectly clear that the appellant had launched an unprovoked attack on his brother. The judge took the view that it was probably also a premeditated attack. He observed that this was a serious case of unlawful wounding. It was made more serious by the fact that it was one of a number of offences involving the appellant's family. There were previous convictions for offences of violence followed by a break in his offending which might suggest that the appellant had gained some control over his temper. However, the judge said that he was not satisfied that this was the case. The pre-sentence report spoke of escalating violence towards those near to him, particularly his brother and father. He was assessed as being of high risk at least to his brother. The judge concluded that there was a significant risk to members of the public, namely his family and those close to him, of serious harm occasioned by the commission by him of further specified offences and that the appellant therefore fell within the dangerousness provisions of the 2003 Act. An extended sentence would therefore be imposed. In all the circumstances of the case the appropriate custodial term was three years' imprisonment with an extension period of two years.
11. For the appellant, Mr Thomas submits that the judge should not have found that the appellant fulfilled the criteria of dangerousness. He points out that the judge appears to have relied on the assessment contained in the pre-sentence report, and, in particular, the escalation in the seriousness and frequency of his violent offending referred to therein. He argues that, although the offence of wounding is more serious than any other offence of violence of which the appellant had previously been convicted, the frequency of his violent offending has been significantly lower in recent years than when he was in his 20s. He contends that the author of the pre-sentence report and the judge placed too much emphasis on the appellant's convictions for offences of violence when a young man. He submits that there was no evidence that the appellant posed a significant risk of serious harm to his brother or other members of his family. Mr Thomas also submits that the custodial term imposed was excessive for a "one punch case", even against the background of two previous offences of causing damage to his brother's property. This, he says, is so whether the three years formed the custodial term of an extended sentence or was imposed by way of determinate term of imprisonment.
12. Today in his oral submissions Mr Thomas has made clear that he does not concede that it would be appropriate for the court to find that the appellant fulfilled the dangerousness provisions if the only risk which the court considered he posed was to one individual, namely his brother.
13. The sentence in this case was passed in May 2008 before the coming into effect of the amendments to the dangerousness provisions which have been introduced by the Criminal Justice and Immigration Act 2008. The appellant had previously been convicted of four offences of assault occasioning actual bodily harm, three in 1984 and one in 1989. Those offences were relevant offences for the purposes of section 229 of the 2003 Act. As a result the judge had to assume that there was a significant risk to members of the public occasioned by the commission by the appellant of further such offences unless he considered that it was unreasonable to conclude that there was such a risk. Although the judge did not in his sentencing remarks specifically refer to the statutory assumption, he plainly concluded that such a risk existed in the appellant's case.
14. Some guidance on the application of the assumption can be derived from the leading case of R v Lang [2006] 2 Cr App R(S) 3. At paragraph 17(v) Rose LJ VP said:

"... the language of the statute indicates that judges are expected, albeit starting from the assumption, to exercise their ability to reach a reasonable conclusion in the light of the information before them. It is to be noted that the assumption will be rebutted, if at all, as an exercise of judgment: the statute includes no reference to the burden or standard of proof. As we have indicated above, it will usually be unreasonable to conclude that the assumption applies unless information about the offences, pattern of behaviour and offender show a significant risk of serious harm from further offences."

15. Serious harm is defined at paragraph 224(3) of the 2003 Act as death or serious personal injury whether physical or psychological. The case of R v Johnson [2007] 1 Cr App R(S) 112 makes clear that it does not automatically follow from the absence of actual harm (still less actual serious harm) caused by the offender to date that the risk that the offender will cause serious harm in the future is negligible.
16. Little information is available about the violent offences committed by the appellant in 1984 and 1989, although the suggestion in the pre-sentence report is that they were directed at the police and others in authority. The first group of three offences, committed when the appellant was 18 or 19 years old, were dealt with by way of community service orders. The fourth offence, committed in 1989 when the appellant was 23 or 24, attracted a term of six months' imprisonment concurrent to other sentences imposed at the same time for assaults on the police. As we have said, there was then a substantial gap of about 11 years in the appellant's offending. However, since 2002 there have been a number of incidents arising out of the hostility between the appellant and his brother. The reason for that hostility is not entirely clear, but it has plainly existed for several years and shows no sign of abating. Although up to September 2007 the appellant had not been convicted of any offence of violence on his brother, there had been two incidents of criminal damage directed at him or his property and the assault on the appellant's father. The incident in September represented a disturbing escalation in the appellant's violent behaviour towards his brother.
17. The prosecution case at the appellant's trial was that the appellant had caused grievous bodily harm with intent, probably using a blade or a glass to inflict his brother's injuries. In the event, however, the jury's verdicts imply that they found that he used no weapon and had struck one hard punch without the intent to cause grievous bodily harm. The verdicts also imply that they must have found that the blow was unprovoked. The judge's view was that the attack was premeditated. This finding was presumably based, in part at least, on the CCTV evidence showing the appellant walking into the public house, which he knew Shaun Hughes frequented, only a few seconds before striking his brother.
18. The appellant's continuing feelings of hostility towards his brother, the previous incidents which have occurred and his action in launching an unprovoked and unexplained attack on him, give rise, in our view, to an obvious risk that he may commit further violent offences against his brother or, indeed, against other members of his family if they appear to him to be taking his brother's part. Such offences may well result in serious harm whether or not the appellant intends such harm. We consider, therefore, that the judge was fully entitled to find that the criteria for dangerousness was satisfied in this case and to pass an extended sentence pursuant to section 227 of the 2003 Act.
19. As we have said, we consider that the risk exists not only in respect of his brother, but also in respect of other members of his family, or indeed others if they appear to be taking his brother's part. However, we make clear that, even had we taken the view that the risk existed in respect of his brother alone, on the basis of the Court of Appeal's _dicta_ in the case of Lang, we would nonetheless have considered ourselves fully entitled to make a finding of dangerousness.
20. As to the length of the sentence, the context in which the offence was committed and the previous offences directed at members of the family are aggravating features. Even so, a sentence of three years' imprisonment for an assault involving one punch is, in our view, excessive. In this regard we note that, in the Sentencing Guidelines Council's Definitive Guideline on Assault and other offences against the person (which has direct application to sentences other than those passed under Chapter 5 of the 2003 Act) the sentencing range identified for a premeditated offence of unlawful wounding where no weapon has been used is 24 weeks to 18 months' custody with a starting point of 36 weeks' custody. This tends to confirm our view that, even taking into account the aggravating features, the length of the custodial term imposed by the judge was excessive.
21. We consider that in all the circumstances a sentence of two years' imprisonment would have been appropriate. We therefore quash the custodial term of three years and substitute a custodial term of two years. The extended licence period of two years will stand, making a total extended sentence of four -- rather than five -- years. To that extent the appeal is allowed.