England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		26 July 2018

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LORD JUSTICE SIMON:

1. The Solicitor General seeks leave to refer to this court a sentence passed on the offender in the Crown Court at Maidstone under section 36 of the Criminal Justice Act 1988 as being unduly lenient.
2. On 13 March 2018, the offender, aged 26, pleaded guilty on a full facts basis to a charge of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Persons Act 1861. On 14 May, he was sentenced by Mr Recorder Gallagher to a term of 4 years' imprisonment.
3. During the early hours of Saturday, 26 August 2017, Daniel Broadley, the victim of the assault, was with his friend, Joe Steadman, at the Red Lion pub at Northfleet, Gravesend. He went into the pub to buy a drink, leaving Mr Steadman outside. When he returned, Mr Steadman was engaged in a heated conversation with a man called Luke Silver. The offender was there too. Mr Broadley had previously met him through mutual friends. The offender was encouraging Mr Steadman and Mr Silver, saying to Mr Silver, "Hit him, hit him". Mr Broadley said to the offender, "Don't stir them up, just let them have their conversation". A crowd of people formed around Mr Broadley and at some point he was pushed in the chest by someone he did not know. The incident that followed was captured on CCTV footage, which this court has seen.
4. The offender walked around the back of the crowd and up to Mr Broadley. He had a bottle in his raised left hand from which he had been drinking a few minutes earlier. He used the bottle as a weapon upended to strike towards Mr Broadley. The first strike missed him and instead came into contact with the head of one of his friends, who was knocked sideways. Mr Broadley faced the offender, who immediately launched his left hand and struck him in the face with the bottle. He felt a thud and put his hands up in an attempt to cover and protect his face. He can be seen trying to get away to a red car. However, the offender continued to assault him, punching him twice. Mr Silver attempted to bring the assault to an end. However, Mr Broadley fell to the ground and the offender then used his left and right hands to punch Mr Broadley to the head. The CCTV footage shows a total of five strikes to Mr Broadley whilst he was on the ground. Another man then intervened and pushed the offender away and a group came to Mr Broadley's aid. The incident lasted approximately 10 to 11 seconds.
5. The offender returned a short time later and said to his victim, "You tried to hit me first but I'm just too fast for you so I hit you first". He was smirking when he said this. Mr Broadley was tearful and said, "I have to go home and see my kids like this. I have to see my family like this and I haven't done fuck all wrong". Police and paramedics attended the scene.
6. Mr Broadley was taken to Darenth Valley Hospital, where a triangular shaped cut to the right side of his forehead was treated with two stitches. Redness had formed over his right eye and swelling over his right cheek, but no abnormalities were noted on the CT scan and he was then discharged.
7. Three days later, he went to A&E at Milton Keynes University Hospital reporting headaches, nausea and discharge from his nose. Further, his nose was clicking in and out of place and he had decreased sensation in the right side of his face with bruising around his eyes. A CT scan revealed fractures to his right eye orbit, right cheekbone and nose. Mr Broadley refers to chipped teeth too. He photographed his injuries, which this court has seen.
8. On 22 September, the offender was interviewed. A legal representative was present. He was asked question about the incident and was shown CCTV footage. He answered no comment to all questions asked. On 31 January 2018, he was charged by way of a postal requisition with section 18 wounding.
9. It is clear from the victim personal statement of Mr Broadley that the assault had an impact on him emotionally, physically and socially, and has affected his ability to work. At first he felt stressed and angry because the incident made him feel that he was unable to look after himself, and the appearance of his facial injuries was such that he felt too embarrassed to see his family, including his children and friends. The incident caused him a lot of emotional stress in the relationship with his partner. He was already suffering from depression when the incident happened and became more depressed. His partner was unable to deal with this depression. The incident also had an impact on his ability to work. He had to take time off, and spent two weeks in a mental health centre. He lost two and a half weeks' wages through his inability to work.
10. The offender had no previous convictions, although he had a caution for common assault in 2011 when he was aged 19.
11. On 13 February 2018, he attended the Medway Magistrates' Court, where the case was sent to Maidstone Crown Court. He indicated a guilty plea and was remanded on unconditional bail.
12. On 13 March 2018, at the plea and trial preparation hearing, he was arraigned and pleaded guilty to the section 18 charge. Sentence was adjourned for a psychiatric report and the offender was remanded on conditional bail; (residence and to attend an appointment with the psychiatric expert as arranged by his instructing solicitor).
13. On 14 May 2018, the case was listed for sentence. Prior to this hearing the recorder received written submissions on behalf of the prosecution summarising the facts and highlighting the relevance and application of the assault definitive guidelines. Two further documents were placed before him in support of the offender's plea and mitigation. The first was a psychiatric report prepared by Dr Sajeela Karim dated 14 May 2018. This provided background information, a psychiatric history recording alcohol and substance abuse, self-harm and a tendency to act impulsively and without consideration of the consequences. The offender's symptoms were, in the view of Dr Karim, suggestive of traits of emotionally unstable personality disorder. He did not, however, suffer from a mental disorder of the nature and degree to require treatment in hospital. Nor did he show any evidence of a severe and enduring mental illness which would benefit from psychiatric treatment under supervision. The second was a letter from Mr D Kmita of Kmita Motors. He spoke to the offender's good character and positive work ethic.
14. The recorder sentenced the offender on the following basis. That it was a wholly unprovoked attack against a defenceless man. There was some degree of premeditation since he deliberately walked around the back of Mr Broadley before striking. He used a bottle as a weapon. It was a sustained attack. More than one blow was inflicted. The strike had missed Mr Broadley and hit another man. The second strike made contact, and he then continued to assault his victim, having knocked him to the ground. There were repeated punches whilst the victim was on the ground. There was a wound requiring stitches and fractures to the right eye orbit, the right cheek and to his nose and he also suffered chipped teeth. The recorder referred to the impact on the victim, and expressed the view that the dangerousness criteria were not met.
15. Applying the definitive guidelines, he determined the case fell on the cusp of category 1 and category 2. The starting point for category 1 was 12 years' imprisonment with a range of 9 to 16 years. The starting point for category 2 was 6 years' imprisonment with a range of 5 to 9 years. The recorder identified a starting point of 6 years' imprisonment and reduced the sentence by 2 years to 4 years' imprisonment to reflect the full credit for the plea of guilty.
16. For the Solicitor General, Ms Pattison submits that in terms of harm this was a sustained and repeated attack, but she concedes that although serious in personal terms to Mr Broadley, the physical and psychological harm was not serious in the context of the offence. As to culpability, there was the use of the bottle to cause the serious harm. There were in addition a number of aggravating features: the targeting of the victim, the location and timing of the offence (an unprovoked attack outside a public house in the early hours of the morning) and the continuing effect of the crime on the victim. She also acknowledges the mitigation available: the offender's background and struggles with mental health issues, his lack of previous convictions, his remorse and his plea. She submits that the recorder was right to place this offending on the cusp of category 1 and 2 but that the sentence did not reflect that assessment and that a sentence of 6 years before credit for the plea did not reflect the seriousness of the offence.
17. For the offender, Ms Cotcher QC submits that this offending was properly characterised as one of lesser harm. It was not a sustained attack in the sense envisaged by the guidelines and the harm was not so serious as to justify greater harm being found. This was, she submitted, a category 2 offence: lesser harm but greater culpability because of the use of the bottle. However, she submits that the bottle was not broken, although she recognised that it was used as a weapon.
18. The recorder had seen a very full and clear psychiatric report from Dr Karim which included material information. He had been the victim of physical abuse from his father and bullying as a child. He had witnessed domestic violence at his home. He had begun to have live issues with his mental health coinciding in part with his father's death about 3 years before. He had made a number of suicide attempts over the past years, matters to which we will come shortly. He had suffered from paranoia, hallucinations and anxiety, as well as drug dependency and the excess use of alcohol.
19. She draws attention to the fact that in the period between August 2017, the offence date, and May 2018, the sentence date, a period of 9 months, he had sought help from mental health authorities and taken a number of steps, including voluntary admission to the Littlebrook Secure Psychiatric Hospital in Dartford, to address his problems. He had initially approached the liaison psychiatric team 3 days after trying to hang himself. There had been other attempts at suicide in October and November and by March 2018 there was still reference to suicidal thoughts. Ms Cotcher submits that this showed a firm commitment by the offender to attempt to solve problems that led to what was an entirely out of character offence and this resolution, she submits, continues in custody, as is clear from the reports.
20. The psychiatric report notes the offender's reaction when viewing the CCTV image of the incident: it made him "disgusted" and he said, "I panicked, I was disgusted I'd done it". She draws attention to the fact that since the date of sentence he has spent much of his time in custody on suicide watch. That information comes from the offender himself, the offender supervision report and, most recently, staff at Rochester Prison.
21. The recorder treated the offender as a man of entirely good character and agreed that the offence was out of character, and Ms Cotchen submits that there are many mitigating factors identified in the guidelines which are present in this case. Apart from his good character, it was an isolated incident and he had shown remorse. The offender told the psychiatrist, "I accept what I did was wrong" and that he was feeling guilty for the negative impact he had had on the victim's life. Nevertheless, she accepts that this was a lenient sentence, although she submits that it was not unduly so in the light of the highly unusual circumstances to which she has drawn the court's attention.
22. We start by observing that this was a despicable crime. The victim was subjected to an entirely unprovoked assault. The offender initially used a bottle as a weapon to inflict the injury before laying about the victim with his fists while he was on the ground. This was an offence of higher culpability within the meaning of the Sentencing Council definitive guidelines on assault.
23. We are not, however, persuaded that there were factors indicating greater harm. As we have said, we have seen the recording of the crime recorded on the CCTV image and serious as the assault was, it lasted no more than 11 seconds from start to finish. We do not regard this as a sustained and repeated assault such as to bring it into the category of greater harm in the guidelines.
24. The assault caused the victim both physical and, as is often the case with this type of crime, longer-lasting mental harm. But these have to be assessed by reference to the nature of the crime charged under section 18. In our view, the nature of the assault and the injuries caused both justified an upward adjustment within the category 2 range, lesser harm and greater culpability, rather than elevating the offence into category 1 or placing it on the cusp of category 1 and 2.
25. The starting point for a category 2 offence is a term of 6 years' imprisonment but these two factors, as well as the location and timing of the offence, the commission of the offence while drunk and the continuing effect of the crime on the victim, would have elevated the starting point.
26. On the other side of the sentencing balance were his effective good character, his troubled background and his continuing mental health difficulties, which he was trying to address, as well as his clearly expressed remorse.
27. The sentence in fact imposed was a sentence of 4 years. In our view, this was a lenient sentence. However, in the circumstances we have described, we do not regard it as unduly lenient. It follows that although we grant leave to refer, we decline to interfere with this sentence, which will remain a sentence of 4 years' imprisonment.