British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General Reference No 80 of 2009 [2010] EWCA Crim 470 (24 February 2010)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/470.html
Cite as: [2010] EWCA Crim 470
[New search] [Printable RTF version] [Help]
CRIMINAL DIVISION
Strand London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE OUSELEY
MR JUSTICE MACDUFF
____________________
| REFERENCE BY THE ATTORNEY GENERAL UNDER | ||
| S.36 OF THE CRIMINAL JUSTICE ACT 1988 | ||
| ATTORNEY-GENERAL'S REFERENCE NO 80 OF 2009 |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr S Sandhu appeared on behalf of the Offender
____________________
Crown Copyright ©
- LADY JUSTICE HALLETT: Her Majesty's Attorney General, Baroness Scotland QC, seeks the leave of the court to refer a sentence which she considers unduly lenient.
- The background to her application is as follows: the offender is Harpal Singh Moore. He is 36 years of age. He was charged on 7th October 2007 with causing grievous bodily harm to his wife with intent to do so contrary to section 18 of the Offences Against the Person Act 1861. He pleaded not guilty at the plea and case management hearing in January 2008, his defence at that time being that the complainant's injuries were inflicted accidentally during a heated argument.
- The trial was fixed to start on 2nd June 2008. On that date the defence applied successfully for an adjournment on the grounds the offender was suffering from depression. The trial was then listed for August 2008 but did not proceed on that day because the offender's legal advisers were professionally embarrassed. A third trial date was set for December 2008 but the complainant was then ill. A pre-trial review was held in July 2009 when the offender confirmed his intention to contest the charge. On the first day of trial, 13th July 2009, after the complainant had attended court to give evidence, the offender pleaded guilty. There was no basis of plea presented to the sentencing judge. Sentence was adjourned for a pre-sentence report and on 4th September 2009 His Honour Judge Walsh, sitting at the Wolverhampton Crown Court, sentenced him to two-and-a-half years' imprisonment.
- It is necessary, given the nature of the submissions made by Her Majesty's Attorney General, to rehearse in a little more detail the relationship between the offender and his wife leading up to and including the day of the offence.
- The offender met the complainant, who was born in 1979, in the year 2000. They married two years later. On any view the marriage was turbulent and the complainant alleged that the offender had been violent towards her. The police were called to their home on a number of occasions and injuries on the complainant were noted. However, on each occasion the complainant declined to give evidence against her husband. The offender was later to tell the police that the complainant was often responsible for inflicting violence upon him. He also claimed that she was responsible for injuring herself, for example burning herself with a cigarette. Both parties claimed that the other drank to excess and was overly jealous.
- On 5th October 2007 the offender came home to find his wife was not there. When she eventually returned he accused her of being with another man. He went out to a local public house and returned two hours later. He continued to drink and continued to make accusations that she was seeing another man and having an affair. She decided the best course was to leave him and go upstairs to bed. The offender followed her and asked her further questions. He went through her handbag and extracted her mobile telephone to seek proof of his suspicions. She went into a smaller room, where the iron and the ironing board were kept, in order to change for bed. The offender followed her and blocked her path to the door. He switched the iron on and said that he had found out something about her. He then said: "You watch what I do to you now." He picked up the iron and he held it to her face, four or five times, leaving it on her skin for two to three seconds each time. He also managed to burn her hand during the course of the attack. The victim initially told the police that he had done this deliberately by placing the iron on top of her hand, but it is right to say that she told the doctor who treated her injury that the burn to her hand occurred when she tried to defend herself. She managed to get away from the attack and she went into the matrimonial bedroom. The offender followed her and said to her: "That's what happens when you get out of line."
- Unfortunately branding his wife with an iron did not satisfy the offender. He jumped on top of her, called her a 'slag' and punched her repeatedly resulting in severe bruising. Eventually the attack subsided and the offender left.
- The next morning the offender realised that, not surprisingly, the complainant was in great pain. He apologized to her and said he could not believe what he had done. However, he neither sought medical treatment for her himself or insist that she should do so. She claimed that he prevented her from contacting anyone or seeking treatment. He left the house to go to work, leaving her alone. She said she was too scared to leave the house. He returned at lunchtime with antiseptic cream, painkillers and a sandwich. He left again for work. When he came back in the evening he suggested that she was responsible for applying the iron to herself.
- On 7th October 2007 she was eventually able to speak to her mother and sister on the telephone. They went round to see her. When they saw her injuries they were horrified. Her sister called the police. According to a statement made by her sister the offender told the complainant's mother that the complainant deserved what happened to her. When the distressed mother remonstrated with him, he told her to 'shut up' and not to disrespect him.
- When the police arrived the offender lied to them. He told them that the victim had thrown the iron at him and he had thrown it back at her, hitting her by mistake. He said he had not realised the iron was switched on. He described the incident as "just a domestic".
- The victim was taken to the accident and emergency department at the local hospital. She was provided with painkillers and dressings. She had extensive injuries to her face and hand, plus bruising to other parts of the body. She was referred to the plastic surgery team. They found a burn wound to the left side of her face measuring two by five centimetres. She had a second burn wound to the left side of her face extending onto the ear and the side of the neck. This was five by fifteen centimetres. The burns were treated and healed within three weeks. However, the scar which remained was problematic. The doctors had to inject it with steroids to try to flatten it and the victim was given silicone gel. She was warned that there was a risk of permanent scarring. Her Majesty's Attorney has put before us today original copies of the photographs of the complainant's injuries at the time she was seen in hospital and two years on when the scarring was still very apparent.
- The victim made a statement in December 2007 in which she described constant pain which required her to take at least six painkillers per day. She was unable to leave the house because of the way she now looked and she had been prescribed anti-depressants. No up-to-date medical information was provided to the sentencing judge or indeed to this court, but he had the benefit of the photographs shown to us.
- The offender was interviewed and maintained his lies. He told the police that he had come home to find the complainant drunk. He said that she had started to attack him and he had pushed her over. He said she had then thrown the iron at him and he had thrown it back. He insisted the iron was not switched on. He said he then went out for the evening and when he returned the complainant was in bed. He only saw the burn marks to her face the following morning and he claimed that they were self-inflicted. He denied that he had had a conversation with the police outside his home when arrested in which he told them that the burns had been caused accidentally. Essentially to the police and later to the author of the pre-sentence report he portrayed himself as the victim in the matrimonial relationship. He told the latter that he had hit the victim with the iron after she had shouted at him and made derogatory comments about his mother, their marriage and his sexual libido. This account did not form part of the mitigation put forward at the sentencing hearing nor put forward to us. We were invited to proceed on the basis that the offender switched the iron on and deliberately applied it to the complainant's face on more than one occasion provoked by his anger at her alleged infidelity.
- Before this offence the offender had two previous convictions. In 1990 he was given a conditional discharge for possessing a weapon in a public place. In 1997 he was given a community punishment and probation order for two offences of driving with excess alcohol.
- The sentencing judge was shown a number of written references upon the offender. They spoke of a caring, hardworking young man who had been involved in voluntary work with young people and who had contributed positively to his local community. Mr Sandhu has invited this court to have regard to prison reports which also describe a pleasant and well-behaved young man. He is said now to be remorseful, well-motivated, polite and punctual.
- The following aggravating features appear to Her Majesty's Attorney General and Mr Laidlaw QC (who appeared with her) to be present. First, the offence occurred against the background of a failing relationship and of previous complaints of domestic violence and in those circumstances represented an abuse of power and trust. Her Majesty's Attorney reminded the court properly that this was not simply a case of the offender picking up an object close to hand to use as a weapon. He turned the iron on and allowed it to heat up before he applied it deliberately to the complainant's face. She also observed the iron was applied on more than one occasion and its use was plainly intended not simply to injure but to disfigure and to punish. She argued that the victim was vulnerable because the attack was carried out in the evening and in the complainant's own home when the parties were alone together. We were also invited to note that not only did the complainant suffer serious physical injuries but there has been a profound psychological effect upon her. She has described herself as a broken woman.
- As far as mitigating features are concerned, there appeared to Her Majesty's Attorney to be but one and that was the belated plea of guilty. She invited us to note the length of time it took for the offender to admit what he had done to his wife.
- On the offender's behalf, Mr Sandhu urged the court to bear very much in mind a basic principle of sentencing namely that the offender must be sentenced only for proven or admitted conduct. Here, he argued, the only proven conduct was the one offence of causing grievous bodily harm with intent to do so. He also asked the court to bear very much in mind that, as is so often the case, there are two sides to this particular story. He accepted that the relationship between the offender and the complainant was stormy, but he submitted, on instructions, that the aggression did not go all one way and it was not always the offender who was the first to react to an argument with violence. The offender's present explanation for his violent reaction on this occasion was that he had discovered evidence of the complainant's relationship with another man.
- Pausing there, we observe that if there is anyone in or outside the criminal justice system who still believes that infidelity can justify or mitigate violence of this kind, they are mistaken. Whatever the hurt or anger that a betrayed partner feels, they must understand that they should not resort to violence. If they do, they do so not only at the peril of their victim but at their own peril.
- Nevertheless, Mr Sandhu invited the court to bear very much in mind the positive side to the offender's character and the references that have been provided for him. He is now separated and/or divorced from the complainant. He is in a new relationship and it is said there have been no instances of violence or aggression within that relationship.
- Her Majesty's Attorney General submitted that the sentence was unduly lenient because the judge erred in selecting a starting point of three years' imprisonment. She drew our attention to the Sentencing Guidelines Council's Definitive Guideline on Assault and Other Offences Against The Person and also their Definitive Guideline: "Overarching Principles: Domestic Violence". According to the Definitive Guideline for Assault, she submitted that the starting point - and emphasised the words starting point - for an offence of this gravity was one of five years' imprisonment. She wished us to note that the offender's plea of guilty was offered almost two years after he was first charged, thereby subjecting the complainant to further stress. She suggested his delay in pleading guilty was because he doubtless hoped that the complainant would withdraw her complaint as she had done in the past. Whatever the reaons for the belated plea, Baroness Scotland and Mr Laidlaw agreed that the credit for the guilty plea should have been no more than ten per cent.
- They further submitted that it is clear from the judge's sentencing remarks that he has failed properly to have regard to the nature of the offending, the background against which it occurred and the aggravating features. She argued that where, as here, there is a documented, albeit unproven history of violence towards the victim, in those circumstances the offender could not be said to have the benefit of positive good character. Thus, the judge appears to have erred in giving undue weight to the positive aspects of the offender's character as described by his friends, work colleagues and relations. Further, the judge failed to identify any significant mitigating factors sufficient to depart from the Definitive Guideline and explain the lenience of the sentence.
- We see considerable force in the submissions advanced by Her Majesty's Attorney General and Mr Laidlaw. Unfortunately, there appears to have been no reference in the Crown Court to either of the two Definitive Guidelines which applied to this case and to which the judge was obliged to pay heed. We have no explanation therefore as to why the judge decided to depart from them, which of course he was entitled to do in an appropriate case. However, to our mind this could never have been an appropriate case. As the Sentencing Guidelines Council makes plain in the Domestic Violence Definitive Guideline: cases of domestic violence committed in a domestic setting should be regarded as no less serious than offences committed in a non-domestic setting. Indeed there may well be circumstances where aggravating features of the domestic setting will make the offence more serious. To our mind it is simply unarguable that had the offender picked up an iron, deliberately switched it on and repeatedly applied it to the face of an unrelated person, intending to cause really serious bodily harm and then contested his guilt, he would have received a sentence considerably longer than the three years suggested by the sentencing judge. The starting point, as Her Majesty's Attorney General pointed out, must have been at least five years. Thus, the judge either selected the wrong starting point or selected the right starting point and reduced it to three years in the light of the glowing references and the offender's so-called good character. If so, he fell into error. Technically the offender did not have the benefit of a previous good character, but far more importantly the history of the relationship between offender and victim in this case makes unhappy reading. As the Sentencing Guidelines Council observed, in a case of domestic violence the history of the relationship is relevant. The couple had a stormy relationship and frequent arguments during which there may well have been fault and violence on both sides; we know not. One thing seems clear, however, the complainant nearly always came off substantially worse. The offender is described as having occasional scratches and bruises. The complainant suffered burns, severe bruising and broken bones. The police have been involved on a number of occasions and the complainant's injuries documented. We also note that this is not the first time that the offender had accused the complainant of burning her own face during the course of a row. It is true to say that none of the previous allegations resulted in a conviction. The complainant says that on previous occasions she felt unable to pursue proceedings. It is not for us to determine why this was so. It may have been because she was lying (as the offender would have it), it may have been because she was too afraid of her husband, or it may have been for other personal or cultural reasons. The fact remains that an incident of violence between these two people resulting in injury to the complainant and the involvement of the police was not an isolated incident and to that extent the offender's involvement in a violent situation with his wife cannot be characterised as out of character.
- We wish to emphasize that we are not for one moment suggesting that where, as here, allegations of a history of unprovoked physical assault throughout a marriage are denied and remain unproven, the alleged violence can amount to an aggravating feature. We endorse the judge's comment that this offender stood to be sentenced for this offence and this offence alone. However, that is a very different matter from concluding, as the judge appears to have done, that the offender's character as described by his friends and family amounted to positive good character which coupled with the fact this was the only offence before the court entitled him substantially to reduce the sentence imposed. The referees may have thought the offence was out of character but sadly it is far from uncommon for someone who assaults their partner to present very differently to the outside world. As the Definitive Guideline puts it, one of the factors which can allow domestic violence to continue unnoticed for lengthy periods is "the ability of the perpetrator to have two persona". In this case, it was common ground violence was a feature of the offender's relationship with his partner.
- We fear the judge may not have borne all this sufficiently in mind. Thus, although the glowing references upon the applicant may well have been relevant and in other circumstances may have amounted to powerful mitigation, they must be seen in the context of this offence which was yet another violent row between the parties where the complainant came off worst. The offender must have known what might happen if he persisted in the row. Nevertheless he chose to do so. Despite the fact the complainant tried to get away from him, he followed her upstairs, he took hold of an iron, he turned it on, allowed it to heat up and then deliberately and repeatedly held it to his wife's face as some kind of punishment and or as a means of ensuring she would become unattractive to other men. He told her this is what she got for being "out of line". In other words he wished to disfigure and punish her. This attack did not suffice. He kept on punching her as she lay on the bed and caused serious bruising. He caused her huge pain and permanent and very unsightly facial scarring in what can only be described, on his present version of events, as a jealous rage. His expressions of regret thereafter were hardly consistent and he made no attempt to get his wife help, despite knowing how bad her injuries were. The authors of the various testimonials upon him would no doubt be shocked and horrified to learn that the Harpal Singh Moore they know could behave in this fashion. Thus, this is not a case, as Baroness Scotland observed, of someone who, in the middle of a heated argument, grabs the nearest object and throws it, thereby injuring their partner. This is not a case of somebody who punches or slaps out in anger. This was an incident of sustained and determined cruelty. It is the kind of offence where even a previous excellent character would pale compared to the gravity of the offending.
- Given all the aggravating factors, and the starting point provided by the Definitive Guideline on Assault, the sentence that we would have expected to see imposed, subject to mitigation, for an offence such as this was at least five-and-a-half years if not longer. The only relevant mitigation sufficient to reduce that sentence on these facts, in our view, is the plea of guilty. It came very late in the day and we share Her Majesty's Attorney's cynicism about why it was the offender waited so long before admitting his guilt. We also note his change of heart came after several changes of story. The credit for his plea of guilty must be limited. We are driven to the conclusion, therefore, that whatever the positive side to the offender's character there is a very negative side which must be severely punished in the hope that his punishment acts as some kind of deterrence to others. We give Her Majesty's Attorney leave to refer the sentence. We quash it as being unduly lenient and we substitute for it a sentence of five years' imprisonment, which in our view is the very least sentence that we can impose.
- Before leaving this case we should mention that Her Majesty's Attorney invited us to make a number of general observations on the subject of domestic violence. Had the Sentencing Guidelines Council not issued their very helpful Definitive Guideline on domestic violence we might have been tempted to do so. However, given the contents of the Guideline, which we whole-heartedly endorse, we do not feel it necessary to go further than to say this: the days when incidents of violence within the home were dismissed by many as "just another domestic" are long gone. Her Majesty's Attorney reminded the court of the many worthy initiatives designed to emphasise to criminal justice agencies and all those involved in the criminal justice system that victims of domestic violence need and are entitled to the protection of the courts as much as any other victim of violence. It may be frustrating for all concerned when repeated complaints of domestic violence are made and the alleged victim refuses to go to court. However, it is in the nature of domestic abuse that it may well take some time and a considerable amount of courage for a victim to speak out. When they do, their complaints must be taken seriously and they must be treated appropriately. Investigators, prosecutors, defenders and sentencing judges should read and in our view re-read the Sentencing Guidelines Council's Definitive Guideline on Domestic Violence and ensure they are truly aware of its implications.