England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 April 2018

LORD JUSTICE SIMON:

1. This appellant was charged with a single offence of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Persons Act 1861. On 16 October 2017, before Her Honour Judge Bacon QC at Norwich Crown Court, he changed his plea before the jury were sworn. On 10 November, he was sentenced by the judge to an extended sentence under section 226A of the Criminal Justice Act 2003, comprising a custodial term of two and a half years and a two and a half year period of extended licence. He appeals against that sentence with the limited leave of the single judge.
2. On 22 April 2017, the victim of the assault, CS, was out with her younger sister FS and friends in Norwich city centre. They went to the Mercy nightclub where they met the appellant. The three of them left the nightclub at about 4.00 am when it closed. They then went to a nearby takeaway where they met JK, a friend of the appellant's who also knew both women. He offered them a lift home in his car.
3. CS got into the front seat. The appellant got into the back of the vehicle next to FS. At some point he asked to be dropped off and they drove up Adelaide Street, where the appellant got out of the car. An argument of some sort then developed between the two women and him. Having got out of the car he tried to prevent the closing of the rear door and thus the car being driven off.
4. What happened next was described by the judge in her sentencing remarks. When he would not allow the door to close CS left her seat in the front and approached him. She was young woman of average build while the appellant was manifestly a well-built man of superior strength. He pushed her. She pushed him back, defending herself. He punched out at her and hit JK by mistake. She punched him, again in self-defence. He then punched her with such force as to break her jaw in three places. She fell and was left unconscious and bleeding on the ground.
5. An ambulance was called and she was taken to hospital, where she had surgery to insert plates and bars across her teeth, which remained in place for a month. She suffered pain and was unable to eat solid food for some time. She said her mental health had been impaired. She suffered from anxiety, paranoia and reduced self-confidence.
6. There was a basis of plea, most of which is not material to the appeal. Paragraph 8 of the basis of plea was in these terms:

Whilst conceding that it is a matter for the sentencing Judge, the Crown and defence place this in Category 3 of the Sentencing Guidelines.

7. That statement was developed in the following two paragraphs.
8. In our view, this was not an appropriate part of a basis of plea, which should be confined to the facts of the crime. However, as was acknowledged, the judge was plainly not bound by an agreement as to the sentencing bracket and in due course the judge did not accept that it was a category 3 offence.
9. The appellant was aged 31 and had a relevant record of offending. He had 12 previous court appearance for 20 offences between 2004 and 2017. Some these were matters which the judge referred to and took into account when sentencing.
10. The pre-sentence report recorded that the appellant had expressed remorse. He had been drinking but did not consider that this has caused him to act as he did. However, earlier reports indicated past binge drinking and heavy use of alcohol. Police records indicated a number of call-outs to domestic incidents between 2007 and 2015. He clearly demonstrated violence within relationships. He had also failed to adhere to notification requirements when he created another identity which he used on a dating website. He had accrued three convictions for breaching the notification requirements of the sex offender register. He did not have a regular source of income and had not worked for a while due to a wrist injury. He did not report any mental health issues. He was assessed as posing a high risk of serious harm to the public, particularly women. There was evidence of sexual entitlement and sexual jealousy underpinning past domestic abuse.
11. CS's victim personal statement of 25 September 2017, 5 months after the assault, addressed the physical and mental effect of the crime:

My jaw had been broken in two places, which resulted in me having to have surgery. The purpose of the surgery was to have plates and screws fitted to my lower jaw to repair the extensive damage caused and, as a result of the injury my jaw had actually been displaced, which also has caused nerve damage, therefore I have no feeling in my bottom lip/jaw/chin and gums. I have been told by the surgeon that if I do not regain any feeling within 18 months of the injury occurring, I will never regain the feeling.

12. A later statement of 16 October referred to the effect on her employment and the need to work part time as a result of her injuries. The crime has very plainly affected every part of her life.
13. In passing sentence, the judge noted that the appellant had disputed the plausible explanation for what had happened, which was that he was sexually interested in one of the girls, the victim had made it plain that she was not interested and he became angry, saying he could have any woman he wanted.
14. The judge set out of the facts of the offence and the basis on which she proposed to sentence the appellant and also the effect on the victim. She took the view that a multi-sited fracture of the jaw which required surgical plating that remained in place for a month before the plates were removed, a painful procedure in itself, and that the victim was still wearing retainers for her teeth at the date of sentence was an injury which was serious in the context of the offence for the purpose of the sentencing guidelines.
15. The judge noted that her victim personal statement showed she had been left with anxiety and had originally lost the will to go out. She was unable to eat solid food for a very long period. She suffered pain, she lost work and she lost confidence. Her family were affected as well. Her teeth were still out of line and a new retainer had had to be made to try and correct that. She still experienced numbness on her face and her lips were no longer symmetrical. It was, in the judge's view, a case of greater harm.
16. The judge found that there were no features of higher culpability but there were a number of aggravating features arising from the appellant's previous convictions. In 2006, he was convicted of being in possession of a knife and a community order was made. In 2007, he was convicted of battery of a female, who sustained severe bruising to her face when he used a shoe to assault her. He was sent to detention for a period of 36 weeks. In 2008, he was back before the courts for two offences of battery and a single offence of rape, the offences representing three separate occasions when he committed crimes against the same woman. He had been sent to prison for a term of six and a half years and was made subject to a sex offender notification order, with whose requirements he repeatedly failed to adhere resulting in sentences of imprisonment.
17. The judge was satisfied that it was his obnoxious attitude that was the cause of the argument which led to the assault of CS and the infliction of grievous bodily harm on her.
18. He was charged and bailed, failed to keep to the terms of his bail and had been remanded in custody. He tendered no plea until the day of trial, when witness had been brought to court. He received very limited credit for that plea. He would be sentenced on the basis that the offence fell within category 2 of the sentencing guidelines. The starting point was a term of 18 months' custody with a sentencing range of 1 to 3 years. There were a number of aggravating features which increased the seriousness of the offence within the guideline for category 2 offending, which the judge set out. She then dealt with the question of dangerousness, which is not a matter which is challenged on this appeal.
19. In his grounds of appeal, supplemented by short and effective oral submissions, Mr Morgans submits first that the sentence of 30 months was manifestly excessive. He maintains that this was in fact a category 3 case, which with the aggravating features that he recognised would have justified a starting point of 12 months. He submits that the aggravating circumstances were brought into account at several stages of the sentencing process and were therefore double counted. First, it was used for the purposes of assessing dangerousness; second, it was used to place the offending within category 2; and, finally, to elevate it within the category. He also submits that although the judge referred to the aggravating features, she did not refer to the mitigating factor of his remorse.
20. Secondly, he submits that the judge did not give any credit for the plea.
21. On this appeal we are concerned only with the custodial term, the categorisation of the offending and the credit for the plea. We reject the first complaint. In our view, the judge was fully entitled to view this offence as falling within category 2 of the guidelines for section 20 offences. The victim was punched with such force that it broke her jaw in several places. She was knocked to the ground, unconscious and bleeding. The effects on her were long-lasting and required protracted surgery.
22. Furthermore, there were significant aggravating features arising from the appellant's previous convictions: offences of violence against women, of which this offence was yet another example. That fully justified elevating the sentence within the category.
23. So far as remorse is concerned, this was not the first attack on a woman and expressions of remorse carry decreasing weight the more often crimes are committed.
24. This record, in our view, justified a sentence above the starting point for a category 2 offence within the category range and that was the process adopted by the judge.
25. So far as the second complaint is concerned, the maximum credit for a plea on the day of the trial is 10 per cent. In this case, witnesses had actually attended and were waiting to be called. The judge said that she was prepared to give limited credit for the plea. A sentence of 30 months with 5 per credit for plea, which it was open to the judge to allow in the circumstances of this case, would indicate a starting point of about 32 months. In our view, this was within the appropriate range on the particular facts of this case.
26. Accordingly, this appeal is dismissed.