England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 6 May 2009

1. Mr Justice David Clarke: On 10 November 2008 in the Magistrates' Court the appellant, who is now 22, pleaded guilty to an offence of inflicting grievous bodily harm. He was committed to the Crown Court for sentence. He was in breach also of a suspended sentence order, comprising six months' imprisonment, suspended for 18 months, with a requirement of supervision, which had been imposed by a Magistrates' Court in connection with drugs offences. On 6 January 2009 in the Crown Court at Wood Green before His Honour Judge Pawlak, he was sentenced to 30 months' imprisonment for inflicting grievous bodily harm and the suspended sentence of six months was activated consecutively, making a total sentence of three years' imprisonment, a direction being given that time spent on remand should count towards the sentence.
2. He appeals against that sentence by leave of the single judge.
3. The inflicting grievous bodily harm offence occurred in this way. On 27 October 2008, at about 9 in the evening, a 15-year old girl was waiting at a bus stop with a friend when they were approached by the appellant. It seems he was under the influence of drink. He spoke to both girls. He made remarks to and about them of an offensive nature. After some 15 minutes they decided to leave rather than wait for their bus. As they did so, the complainant made contact in some way with the appellant, brushing past him or knocking against him in some manner, in response to which he punched her in the face with such force as to cause her to sustain two fractures to the jaw which required wiring.
4. The appellant was arrested some ten days later when he was answering police bail on another matter, but he declined to comment in interview. He was already accumulating a significant criminal record. He had a conviction for robbery in 2005 for which he received a detention and training order for 12 months. He received community orders for offences of theft in 2006 and a further community order in August 2007. The suspended sentence order to which we have referred was made in October 2007. In August 2008, for an offence of theft, a fresh community order with tagging requirements was imposed. The present offence was committed some two months after that.
5. There was a pre-sentence report. It indicated only limited recognition of the seriousness of this offence which he had committed when drunk. Drink is clearly a continuing problem for the appellant. He had moved with his family to this country from Holland when aged about 14. They had lived in Leicester, where most of his earlier convictions had been recorded, but moved to London not long before this offence. He had obtained some college qualifications but had been working in a bar which clearly did nothing to help him to overcome his alcohol problem. It was recognised before the Crown Court that an immediate custodial sentence was required. The issues were as to its length and as to the imposition of the suspended sentence.
6. The learned judge's sentencing remarks were relatively brief. He referred to this as gratuitous violence inflicted on a 15-year old girl who was a total stranger with serious consequences for her. He said that the only thing to be said in the appellant's favour was his plea of guilty at the first opportunity. The learned judge accepted that he regretted doing what he had done. He told the appellant that he needed to learn to control his behaviour and to appreciate the consequences for people affected by it. He then announced the sentence of two and a half years for that offence. He went on to implement the suspended sentence in full, making a total sentence of three years in all.
7. The submission made in the grounds of appeal prepared by Mr Johnston, supplemented by a full skeleton argument, for which we are grateful, was that 30 months following an early plea of guilty far exceeded the ranges set out in the Sentencing Guidelines Council Definitive Guideline and was manifestly excessive. It is suggested that the learned judge's starting point for the offence of causing grievous bodily harm was significantly longer, some three and three quarter years. The judge made no reference in the sentencing remarks to the guideline. From what we have been told by Mr Johnston the guideline was only very faintly mentioned in mitigation without reference even to the starting points and sentencing ranges set out in the table.
8. We consider that this guideline is not an altogether easy one to apply. This punch was not itself premeditated. That we would accept. It did, however, cause a serious injury, albeit not one, in the words of the guideline, to be described as "particularly grave". This would mean on a literal reading of the guideline that the starting point for a first-time offender, there not being a weapon nor premeditation, would be at the very bottom range, a starting point of 24 weeks' custody, a community order to 36 weeks being the sentencing range. However, this case had features taking it well above that range, a matter which, in our judgment, the learned judge could properly, and should in our view, have referred to in his sentencing remarks.
9. We have been referred to a number of single punch cases in which significantly higher sentences than those set out in that guideline were imposed. They, of course, precede the publication of that definitive guideline. We refer to the cases of Clare [2002] 2 Cr App R(S) 97, Jeffrey [2003] EWCA Crim 2098 and Foote [2005] 2 Cr App R(S) 5. These are cases in which sentences for grievous bodily harm after pleas of guilty were reduced in this court in two cases to two and a half years and in one case to 18 months. It is right that those reduced to two and a half years are cases in which particularly grave injuries did result.
10. But this case had significant aggravating features, as we have just indicated. The punch was a particularly heavy one, causing a double fracture of the jaw. It was struck as the victim was trying to leave the bus stop where she and her friend had been waiting for a bus. She had evidently decided that discretion was the better part of valour and she should not continue to wait for the bus even though her main desire was to catch the bus home. She was trying to leave the scene precisely because of the appellant's offensive, intimidating and frightening behaviour towards her. We have seen he is a tall young man and we have little doubt that he was behaving in a frightening manner towards her and her friend. He had initiated the entire episode. He appears to have regarded himself as more important than the girls, wishing to exert power over them. If she did brush past him, or push him, as she tried to leave, that cannot possibly be regarded as provocation or excuse as was faintly suggested in the written argument but not pursued before us. Quite the reverse indeed. In addition to this, the appellant was not a first offender.
11. In our judgment, taking all these matters into account, the learned judge would, in our view, have been entirely justified in approaching this case as meriting a sentence in excess of two years and up to two and a half years had this been a contested trial, but a notional sentence in the region of three and three-quarter years would have been manifestly excessive. We consider that the proper sentence for the offence of causing inflicting grievous bodily harm following the plea of guilty here is one of 18 months' imprisonment.
12. As regards the imposition of the suspended sentence in full, in our judgment, this was correct on the facts of the present case. It has been argued that the judge should have reduced the term on account of the appellant's compliance with some of the provisions of the community order. He relies on the Sentencing Guidelines Council's guideline on new sentences under the Criminal Justice Act which was published in December 2004 and in particular the passage reading as follows:

"Where a court considers that the sentence needs to be activated it may activate it in full or with a reduced term. The extent to which the requirements have been complied with will be very relevant to this decision."

13. Mr Johnston further relies on the case of Zeca [2009] EWCA Crim 133 in which only half of the term of the suspended sentence was imposed on account of the fact that the unpaid work requirement, being part of the suspended sentence order, had been fulfilled.
14. We do not take that view in the present case. There was not an unpaid work requirement in this case. The supervision element involved and required attendance at the Think First Programme which the appellant did, it seems, attend, but the facts show that he learned nothing from it. His conduct on this night exhibited a total failure to think first. Indeed, he committed two offences in the operational period of that order. In our judgment, the judge was right to impose that in full and we shall not interfere with it.
15. Accordingly, we allow the appeal, quash the 30-month sentence, substitute a sentence of 18 months, six months consecutive will stand, so two years in all. Time served on remand to count as before. The appeal is allowed to that extent.