England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		5 July 2017

1. MR JUSTICE HOLROYDE: On 4th April 2015 this appellant admitted two offences of breach of a restraining order, contrary to the Protection from Harassment Act 1997. He was committed to the Crown Court for sentence on those offences. About three weeks later on 22nd April 2015 in the Crown Court at Isleworth, he pleaded guilty to an indictment charging him with offences of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861; assault occasioning actual bodily harm, contrary to section 47 of that Act; and possession of an offensive weapon, namely a machete, contrary to the Prevention of Crime Act 1953.
2. On 16th July 2015 he was sentenced for the wounding with intent offence to an extended sentence of eight years, comprising a custodial term of five years and an extended licence period of three years. Shorter concurrent sentences were imposed for each of the other offences.
3. With the leave of the single judge he now appeals against his sentence. The single judge specifically granted leave on one ground but refused it on another. In the hearing before us today all grounds are pursued and so far as necessary leave is sought from this full court.
4. We are very grateful to counsel Mr Chakmakjian for his extremely careful and helpful written and oral submissions. He was not involved in the case at the time of sentencing. He has clearly done a great deal of work in order to present this appeal to the court.
5. In order to assess the merits of the submissions which are made on the appellant's behalf, it is necessary for us to summarise a number of matters in chronological sequence. The applicant has been living in the United Kingdom for a number of years. He has worked, but unfortunately he has also committed offences. He is now aged 37 and so all of the matters which we must mention occurred when he was a mature adult.
6. In 2007 he received a formal caution for an offence of possessing an offensive weapon. In 2011 he was convicted of a further offence of possessing an offensive weapon in a public place, that being a knife. In both 2012 and 2013 he received further formal cautions, the earlier being for an offence of damaging property, the later being for an offence of battery. Also in 2012 he was convicted of a further offence of causing criminal damage. That offence was committed, as we understand it, when the appellant was in drink. The penalty for that offence was a community order which included a requirement of unpaid work. The appellant did not comply with that requirement. He had to be brought back before the court and further hours of unpaid work were ordered to be performed.
7. In December 2014 the appellant was sentenced to 18 weeks' imprisonment for battery of his then partner. Significantly for present purposes it was in the course of the prosecution for that offence that on 26th October 2014 a restraining order was made in order to protect his former partner. That is the order of which he was later in breach and which we must deal with today. The brief circumstances of the incident of violence involving his ex-partner have these features: the appellant appears again to have been in drink and when a police officer attended the scene the appellant threatened him with a shovel.
8. In March 2015 the appellant was convicted of two further offences of battery and one of using threatening behaviour. He received a short prison sentence. The circumstances there appear to have been that in drink in February 2015 he attacked a woman and her teenage son who were living, as he was at the time, in a hostel. Very soon after that there was a further incident of violence when in drink. The appellant was abusive and threatening to two innocent people, the police were called; the appellant kicked and headbutted two of the officers. He was later sentenced to 16 weeks' imprisonment.
9. Pausing there in the chronology, we must mention now a matter on which counsel understandably places substantial reliance. Although the precise date is not known, we accept that January 2015 appears to be the correct month. The appellant had the misfortune to be the victim of a serious crime for which another man was subsequently prosecuted. He was clearly affected emotionally by what he experienced on that occasion. Mr Chakmakjian points out that when the appellant was before a Magistrates' Court in mid-March 2015, that court was assisted by a short written mental health assessment. It is important to note that this assessment dated 16th March 2015 could only be based on a brief interview with the appellant lasting a matter of 10 minutes or so. It was therefore heavily dependent upon the appellant's self-report, although it must be said in his favour that the author of the assessment report did contact the appellant's GP and confirm certain details. The assessment referred to the episode when the appellant had been a victim of crime. It indicated that he had been prescribed antidepressant medication since that time and was seeing his GP. The assessment also noted that the appellant appeared to be engaging well with his general practitioner and was motivated to seek and benefit from the professional assistance he hoped to receive.
10. We return to the sequence of events. Also in March 2015 the appellant committed the various offences with which we are specifically concerned. He twice breached the restraining order which was intended to protect his former partner. At the beginning of March he rang her on her mobile phone, abused her, made threats to burn her house down and blamed her for all the problems he was having in his life. She did not immediately report that to the police because she was afraid. However, she subsequently collapsed at her place of work, apparently due to stress, and was taken to hospital. Later in March, towards the end of that month, he sent a text message to his former partner, again belittling her, telling her that she would lose her job and that he had won. She changed her telephone number to try to avoid further such contacts. The appellant however continued to send messages to her but routed them through her sister's phone. These messages were threatening both to the former partner and to her sister.
11. Then we come to the matters charged on indictment which occurred on 2nd April 2015. On that evening a Mr Markworth and his friend Mr Bell were at a public house. Mr Markworth had gone to the area outside the premises where smokers congregate and was smoking a cigarette. The appellant, a stranger to him, approached him and asked for a cigarette. Mr Markworth's response in blunt terms was to tell the appellant to "go away". The appellant seemed aggressive in his attitude to this. Mr Markworth went back into the pub to avoid any trouble. The appellant walked off.
12. The appellant however returned about an hour later. He found Mr Markworth and asked him to come outside for a word. When Mr Markworth did so, the appellant produced from inside his clothing a machete which he had brought with him to the scene. Both Mr Markworth and Mr Bell tried to intervene to prevent him making any use of this weapon. There was a struggle in which both were injured. Mr Markworth was doing his best to hold onto the wrist of the hand in which the appellant was holding the machete, but in the course of the struggle the appellant was able to twist his hand around and the knife cut the inside of Mr Markworth's left thumb. That was the subject of count 1, wounding with intent to cause grievous bodily harm. Mr Bell in the course of the struggle also received a cut to his hand. It was not clear precisely how that had been caused. That was the subject of count 2, assault occasioning actual bodily harm. The third count of course related to the appellant having brought the machete with him in a public place as an offensive weapon.
13. At the sentencing hearing, the learned judge, His Honour Judge Johnson, had the assistance of a very detailed pre-sentence report. As counsel points out to us today, the report included reference to the earlier mental health assessment prepared for the Magistrates' Court which we have already mentioned.
14. The appellant had told the author of the pre-sentence report that at the time of these offences at the public house he had consumed several pints of beer on top of the medication which he was prescribed for his depression. By way of explanation, he said that he had been experiencing extreme emotional difficulties since being himself the victim of serious crime and he was resorting to what is referred to as self-medication with alcohol to help him to cope with the pressures which he felt himself to be under. In relation to this, the author of the report, in a passage on which counsel understandably relies, expressed the view that the emotional problems consequent upon being a victim of crime contributed to the appellant's state of mind at the time of these offences and were significant in the commission of those offences. The author also expressed the opinion that the appellant's offending history showed a propensity towards using violence to deal with difficult situations and expressed a view that his readiness to use violence was evidence of a lack of problem-solving and thinking skills which manifested on the day of these offences.
15. The appellant told the author of the report that since being a victim of crime he had been leading a very isolated and transient lifestyle, although he did accept that alcohol misuse had been a factor in the majority of his offending, which, as is apparent from our brief summary, dated back to a time well before the appellant suffered the trauma of being a victim of crime.
16. The author of the pre-sentence report made a specific assessment of the risk of serious harm. Reference was made to the familiar OASys assessment system for determining the likelihood of re-offending and counsel today places some reliance on the statistics relating to patterns of offending by offenders of a similar age, gender and social and criminal situation as this appellant.
17. Coming however specifically to the assessment of this appellant's case, the author of the report said this:

"This latest conviction, the most serious conviction to date, and the fact that it took place so soon after imprisonment and in such quick succession to other violent offences are an indication that Mr Ciechelski's attitude, thinking and behaviour continue to present avenues of clear potential of risk of harm. I would therefore assess that Mr Cielchelski poses a high risk of committing further specified offences and causing significant harm to others. The harm being physical violence or significant injury to members of the public."

The author went on to say that the appellant clearly has significant emotional problems and also issues with alcohol misuse.

18. In his sentencing remarks, the learned judge accepted a submission that the principal offence, the wounding with intent, was a Category 2 offence in terms of the relevant sentencing guidelines. The guidelines therefore indicated a starting point of six years' custody with a range of five to nine years' custody. The judge identified as aggravating features the significant degree of premeditation, the use of the machete, the appellant's intoxication and the appellant's previous convictions for offences involving violence and carrying a weapon. The judge went on to say that the breaches of the restraining order were serious examples of their kind which had resulted in serious psychological damage to the appellant's former partner, when he sent to her what the judge described as "very nasty threats indeed". The offensive weapon offence was also a bad case of its kind and the judge noted the assault occasioning actual bodily harm occurred when the victim of that offence was doing no more than trying to protect his friend.
19. In the light of the pre-sentence report and all that he had been told about the appellant, the judge was satisfied that the appellant was a dangerous offender as that term is defined in the Criminal Justice Act 2003. He was satisfied that an extended sentence was the appropriate sentence on count 1. He indicated that he would pass concurrent sentences for all other matters, but that the length of the custodial term of the extended sentence would be "slightly increased as a result of the sentences all being concurrent." No complaint is or could be made of that approach to the structure of sentencing.
20. The judge then imposed on count 1 the extended sentence to which we have referred. On counts 2 and 3 he imposed concurrent terms of 18 months' imprisonment. For each of the two breaches of the restraining order he imposed concurrent terms of 12 months' imprisonment.
21. In his written submissions, Mr Chakmakjian submits that the finding of dangerousness was not justified because the evidence and information before the court did not support the finding of a significant risk of serious harm being caused in the future to members of the public by the appellant committing further specified offences. In particular, he argued that the present offences occurred when the appellant was struggling with severe emotional problems for which he had sought, and to an extent had subsequently received, professional help. In those circumstances, counsel challenged the finding of dangerousness as being wrong in principle. In the alternative, he submitted if an extended sentence was correct in principle the length of the extended licence period was manifestly excessive.
22. The single judge did not regard that challenge to the finding of dangerousness or to the length of the licence period as arguable. This is the aspect of the hearing on which counsel renews his application for leave. We having considered the matter afresh reach the same conclusion as did the single judge. The appellant's offending history showed a clear picture of repeated incidents of intoxication and violence, coupled with a reluctance on his part to abide by orders of the court. The offences committed at the public house show a very worrying willingness to resort to the use of a deadly weapon in response to, and it would seem in revenge for, a most trivial incident. Whether the Appellant's original intention when he returned to the public house was to threaten or to cause serious injury was perhaps not clear, but the struggle began and the appellant admitted an intention to cause serious harm to one of his victims. It was essentially a matter of good fortune that the combined efforts of the two victims avoided any more serious injury.
23. The passages which we have quoted from the pre-sentence report supported the judge's finding of dangerousness. The extended licence period of three years was in our view entirely appropriate in the circumstances of this case. We therefore see no basis for granting leave on this ground.
24. Mr Chakmakjian's oral submissions today have been focused primarily on the length of the custodial term, the ground on which he was given leave. He argues that this was manifestly excessive. In particular he submits that the learned judge made no reference to what were on any view significant matters of personal mitigation. The custodial term of five years (the judge having given full credit for the prompt guilty pleas) clearly implies a sentence after trial of seven-and-a-half years' imprisonment. Counsel accepts that the elements of premeditation, the use of a weapon and intoxication were aggravating features. If those alone were considered, he accepts that it would not be possible to criticise the length of the custodial term. But, submits counsel, there were also significant matters of personal mitigation which should have been weighed in the balance and which should have reduced the custodial term. Counsel points to the mental health problems experienced by the appellant since suffering the trauma of being a victim of crime. He submits that those problems were relevant first to the use of alcohol as a form of self-medication, rather than a self-indulgent liking for drink. He suggests that the mental health problems are relevant to what on the face of it was a wholly disproportionate response to a trifling incident when the request for a cigarette was refused. Further, counsel suggests an apparent link between the mental health problems and the marked escalation in seriousness from those offences which we have summarised as part of the history and the events at the public house. He also emphasises that the appellant had been making genuine efforts to obtain professional assistance with his problems.
25. Counsel points out, accurately, that none of those points was specifically mentioned by the learned judge in his sentencing remarks. He argues that if they had been given the weight which they should have been given, the sentence must necessarily have been shorter than it was.
26. It is unfortunate that the learned judge did not expressly refer to these matters. With counsel's assistance we have explored, so far as we are able to do, what matters were specifically put before the judge at the sentencing hearing. There is no transcript of those submissions, but counsel has quite rightly made contact with counsel who represented the appellant at the sentencing hearing. We are told, and we readily accept from counsel, that mental health issues were raised as a matter of mitigation for the court to take into account. The precise terms in which those issues were raised and the force with which they were advanced is not something which we are able to ascertain.
27. We have reflected carefully on whether we should conclude that the judge cannot have given sufficient weight to those matters of mitigation and so arrived at a custodial term which was manifestly excessive in length. Two particular features strike us as important in this regard.
28. First, we have no reason to doubt that the appellant had been the victim of a serious crime and had been affected by that experience. There is no suggestion that the sentencing judge doubted that those matters were factually correct. But there was no expert evidence before the court as to any causal link between depression and emotional turmoil consequent upon that trauma and the commission of these offences. The only professional material before the court in this regard was the very brief mental health assessment which we have mentioned. With all respect to the author of that document, the circumstances in which it was prepared involved at best a few minutes' discussion with the appellant. True it is that there were helpful passages in the pre-sentence report to which counsel draws our attention, but the court had to view these present offences in the context of the appellant's record over a number of years of drinking too much and acting violently.
29. In so far as the date on which he was a victim of crime has been established, it goes without saying that that unhappy experience in January 2015 post-dates all the convictions up to that date, including the conduct towards his former partner which resulted in the restraining order being made in the autumn of the previous year. In relation to the offences at the public house, we accept of course that the appellant's depression was part of the factual background. But much more in the foreground of the offending was the appellant's choice to drink a substantial quantity of alcohol at a time when he knew he was taking prescribed medication and then, after a trifling incident, choosing to return to his home, equipping himself with a machete and returning to seek out the man who had refused him a cigarette.
30. Secondly, and in any event, we are not persuaded that the length of this sentence points to the judge having overlooked or failed to give any sufficient weight to the matters of mitigation which were put before him. There were, as we have said, a number of aggravating features. Those would have called for a sentence on count 1 which was high in the category range which we have mentioned, even before taking into account the other offences committed on that occasion and the breaches of the restraining order. As a matter of ordinary sentencing principle, those breaches of the restraining order would have merited a consecutive sentence. The judge perfectly correctly ordered that all terms should run concurrently, but the custodial term had to reflect the criminality of those earlier offences as well as the criminality of all the offences and at the public house.
31. When we step back from this, it seems to us that a total custodial sentence after trial of seven-and-a-half years, reduced to five years after giving full credit for prompt pleas, cannot be said to be manifestly excessive.
32. Accordingly, and notwithstanding the extremely helpful submissions of counsel, we are not persuaded that the learned judge fell into error. The appeal against sentence therefore fails and is dismissed.