England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		9 May 2018

1. MR JUSTICE JAY: On 1 December 2017 the appellant was sentenced by His Honour Judge Batty QC, sitting at York Crown Court, following his guilty pleas, to a total term of imprisonment of 3 years on a two count indictment. Count 1, assault occasioning actual bodily harm, the sentence was 3 years' imprisonment; on count 2, criminal damage, no separate penalty was imposed. He appeals against sentence with the leave of the single judge.
2. The facts of this case are that the victim had been in a relationship with the appellant for 5 years. She told the police that there had been no previous incidents between them. On the evening of 12 July 2017 they were both at home. The victim had some friends with her as well as her 17-year-old nephew and there were three young children upstairs asleep. The appellant had had a lot to drink during the course of the evening and his partner suggested that he leave and visit a friend as she did not like him to be in the house when he was drunk. He left and she locked the front door.
3. Moments later the appellant returned to find the front door locked and he began kicking the door. The victim was frightened and phoned the police such was the level of force with which he was kicking the door. While she was on the phone to the police the front door broke open and he came running in. In relation to count 2 there was no evidence as to the value of the damage to the door.
4. The appellant assaulted the victim and started punching her to the head. He pulled her to the floor by her hair and then he began kicking her to the head calling her "a slag". It seemed to last for several minutes. She used her arms to protect her head. Her friends intervened. There were differing views as to what happened next. She did manage to get back on the phone and whilst she was trying to phone the police one witness said he jumped on her at least five times. Another witness said he picked up a television and threatened to smash it and he smashed the glass in the kitchen. Her friends managed to stop the assault and he left the property.
5. The complainant had a fractured nose, a large clump of hair had been pulled out and she had a swollen eye. She was treated at hospital for a severe headache and was given intravenous painkillers. She suffered severe nausea from having her head kicked and she was sick. She was X-rayed and the CT scan had to be performed.
6. The appellant gave a "no comment" police interview.
7. The appellant was 29 at sentence, born on 18 June 1988. He had seven previous court appearances for 20 offences between 2005 and 2014. Most of these convictions are not relevant for present purposes. In 2007 and then in 2008 the appellant was given low fines for what must have been relatively minor offences of criminal damage. In June 2010, at York Crown Court, the appellant received a sentence of 48 weeks' imprisonment for various offences of assault occasioning actual bodily harm and battery. One of the offences involved assault of a police officer. Most importantly for these purposes, another of the offences entailed assault of a partner in circumstances very similar indeed to the present case. Finally, in 2014 the appellant received a community order for assault on a police officer.
8. According to the pre-sentence report the appellant recognised that he could drink too much and he had sought professional help. He had engaged with counselling. His compliance with probation supervision had been satisfactory. He was assessed as a "medium" likelihood of re-offending and a medium risk of serious harm to his partner.
9. The mitigation advanced on behalf of the appellant was that he was remorseful, that alcohol lay at the root of his offending, and that he was addressing this by seeking professional help. Furthermore, the appellant was a self-employed bricklayer and his family would be significantly impacted if a custodial sentence were imposed. Counsel submitted that any custodial sentence could and should be suspended with requirements. A 25% discount for plea was not in issue.
10. In his sentencing remarks His Honour Judge Batty QC placed emphasis on the appellant's previous conviction for what we have said was the very similar offence committed in late 2009. In the current matter he did exactly the same thing but there were the following serious aggravating factors. There were three young children asleep upstairs when he violently attacked his partner; it was done in the presence of his 17-year-old nephew and furthermore his victim, his partner, made efforts to telephone the police but he tried to prevent her from calling them by jumping on her and threatening her with further violence.
11. In the judge's view there was no doubt that this was a category 1 offence: greater harm and higher culpability. For someone with no previous convictions the sentencing range was of up to 3 years, with a starting point of 18 months, but there were statutory aggravating features. These took it outside the top range of the Sentencing Guideline under category 1 and led to a sentence in the region of 4 years' imprisonment; after credit for plea the sentence was therefore 3 years' imprisonment. There was no separate penalty for criminal damage.
12. The grounds of appeal are that the starting point was outside the guidelines and was manifestly excessive, and the sentence could have been suspended on a lower starting point with 25% discount for a guilty plea. Of course, in relation to a possible suspension, one would have to reach a sentence of no more than 2 years' imprisonment.
13. In her clear and well-presented oral arguments Ms Laura Addy, for the appellant, developed these submissions as follows. She accepted that the views of the victim could not really be prayed in the appellant's aid. She drew attention to the fact that the starting point under the relevant guideline for category 1 offence was 18 months' custody and she accepted that there were aggravating features here which took it above that starting point. The real question, as she put it, was whether those aggravating features took this case as high as 4 years before credit was given for the plea.
14. Her headline submission was that 4 years was manifestly excessive and that the right figure could be seen to be in the region of 32 months which, when discount was given for the plea, would take this down to 24 months. Ms Addy then submitted, in connection with the relevant guideline, that it would be possible to suspend the sentence because various relevant boxes in the context of that guideline were notionally ticked: in particular, as we have pointed out, the appellant's mitigation and his remorse, and the fact that he has engaged with professional help.
15. We have carefully considered these submissions. Under the Sentencing Council's Assault Definitive Guideline on page 12 this was undoubted a category 1 offence with a sentencing range of up to 3 years' imprisonment.
16. The factors indicating greater harm were the nature of the injury, the vulnerability of the victim and the sustained or repeated assault on her.
17. In our judgment, the judge was not bound by the 3-year threshold but he would need to give clear and compelling reasons for exceeding it. The guideline itself provides:

"A case of particular gravity, reflected by multiple features of culpability in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below."

18. We have noted the appellant's personal mitigation but then so did the judge. The difficulty with the appellant's submissions before us is that this was a very serious offence of assault occasioning actual bodily harm, with the obvious aggravating features that the judge enumerated, and it was also an offence which did bear truly striking similarities with the 1909 offence, involving on our understanding another partner.
19. The question for us is whether the judge was entitled to take this case beyond the threshold set out in the guidelines or, put another way, whether his doing so led to the imposition of a manifestly excessive sentence or one that was erroneous in principle. In our view, after careful reflection, we simply cannot conclude that the judge erred in his approach or in the level of the sentence he imposed.
20. In those circumstances, no possible issue arises in relation to the suspending of the sentence. The appeal must therefore be dismissed.

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