England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 17 October 2018

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1. MR JUSTICE GOOSE: On 20 February 2018 in the Crown Court at Lewes, the appellant, Jamie Williams, now aged 28, was convicted of four offences for which he was sentenced on 13 April by His Honour Judge Waddicor. The sentences imposed were as follows: assault occasioning actual bodily harm, contrary to section 47 of the Offence Against the Person Act 1861 (count 1), 4 years' imprisonment; assault by beating, contrary to section 39 of the Criminal Justice Act 1988 (count 2), 3 months' imprisonment consecutively; fraud, contrary to section 1 of the Fraud Act 2006 (count 3), no separate penalty; dangerous driving, contrary to section 2 of the Road Traffic Act (count 4), no separate penalty. The judge disqualified the appellant from driving for a period of 18 months and directed that he be prevented from driving until he passed an extended driving test.
2. After the sentence hearing had been completed, counsel informed the judge, through court staff, that an extension to the disqualification period was necessary, under section 35A and 35B of the Road Traffic Offenders Act 1988. A suggested disqualification of 43 months was made by both the prosecution and the defence, which the judge directed by way of an amendment to the sentence.
3. The appellant now appeals his sentence with the leave of the single judge.
4. In his grounds of appeal it is argued that the judge should have placed the offending for the section 47 assault in category 2 of the Assault Guideline and not category 1. Further, it is argued that if category 1 was appropriate, it should have been adjusted downwards to reflect the circumstances of the offence. It is argued, therefore, that the total sentence imposed of 4 years and 3 months was manifestly excessive or wrong in principle.
5. The circumstances of these offences can be shortly summarised. On 14 June 2017 the appellant drove the complainant, who was his girlfriend at the time, in a car to Brighton where they met two friends including Reece McCue who joined them in the car. The appellant drove to Essex, stopping briefly to purchase alcohol which was consumed by the appellant and his friends. Later that night, after visiting the appellant's brother in Essex, the appellant started the journey home. In the back of the car was Reece McCue and another friend, both of whom were asleep. An argument developed between the appellant and the complainant. She suspected that the appellant had taken some drugs. The appellant then pulled the vehicle over to the side of the road and turned to punch a forceful blow to the face of Reece McCue whilst he was asleep. The appellant then opened the door and dragged him out of the car, before getting back in the car and driving away, leaving Reece McCue at the roadside. That assault comprised count 2 on the indictment. The argument became more heated in the car between the appellant and his girlfriend after what the appellant had done to Reece McCue. The complainant telephoned the police because she was concerned that Reece McCue had been left unconscious at the side of the road. The appellant did not want the police to be informed and so he punched the complainant to the face, then stopped the car and dragged her out of the vehicle. As he drove the car away he drove over the complainant's right leg causing abrasion injuries and bleeding to the thigh. That assault comprised count 1 on the indictment. Left at the roadside the complainant called the police, the recording of which was heard during the trial and plainly demonstrated the fear the complainant was in.
6. At one point the appellant returned in his car but the judge, after trial, was satisfied that this was out of his own interest to prevent the police from being contacted and not out of any concern for the complainant. Later, the appellant used the complainant's bankcard to steal money from her account. That offence comprised count 3.
7. In a victim personal statement, the complainant described how she had been significantly affected by the assault upon her. She is left with permanent scarring to her thigh as well as significant psychological consequences based on her fear of seeing the appellant again and her reluctance to go out in public.
8. In sentencing the appellant, the judge concluded that the offence of assault occasioning actual bodily harm fell within category 1 of the Assault Guideline, involving greater harm and higher culpability. The assessment of harm was based on the injuries being serious in the context of the offence and higher culpability was based upon the use of the car recklessly as a weapon. The offence was aggravated in its seriousness by the fact the appellant had consumed alcohol, although there is no evidence that drugs had been consumed, and that the complainant was vulnerable at the time of the offence against her. Additionally, the appellant had previous convictions for offences of assault, some whilst as a juvenile, but more relevant were two offences of assault occasioning actual bodily harm in 2009, when the appellant was sentenced to 18 months' custody. The judge concluded that the offence was serious enough to go outside the range within category 1, being between 1 to 3 years custody. The sentence of 4 years' was imposed for the assault occasioning bodily harm, together with 3 months consecutive for the assault upon the second complainant, Reece McCue. No separate penalty was imposed in respect of the fraud or the dangerous driving offence.
9. We have considered carefully the grounds of appeal and the oral submissions made on behalf of the appellant. Whilst we are not persuaded that the offence of assault occasioning actual bodily harm should have been in category 2 of the Guideline, we are satisfied that despite the aggravating factors identified by the judge, this offence did not merit an increase from the starting point for category 1 of 18 months to a sentence of 4 years' custody. We are conscious of the fact that the judge conducted the trial but, with respect, an increase from a starting point for 18 months for the aggravating factors should not have led to an out-of-category sentence. In our judgment, the sentence of 3 years' custody was appropriate being at the top of the category range after trial. We see no arguable ground against the 3-month sentence imposed consecutively for the second assault. Accordingly, we allow the appeal in respect of count 1, thereby making a total sentence of 3 years and 3 months.
10. We turn to consider the orders made for disqualification. The appellant has previous driving convictions. He was disqualified from driving for a period of 12 months, for driving a motor vehicle with excess alcohol, on 3 December 2015. On 13 November 2017, for two offences of driving a motor vehicle with a controlled drug above the specified limit, he was disqualified for 3 years. The minimum disqualification period, under section 34(3) of the Road Traffic Offenders Act 1988 did not apply to the appellant. The judge ordered that the appellant be disqualified from driving for 18 months and correctly determined that the section 35A of the Road Traffic Offenders Act 1988 required an extended disqualification to be imposed when a custodial sentence was passed at the same time.
11. Unfortunately the judge did not make clear when the disqualification was to start or to give effect to the interim order made on the date of the guilty plea. The judge stated that the disqualification was for 43 months, being half of the custodial term plus the 18-month disqualification. Then she stated at page 7B:

"... I am required to say when the disqualification period will run from. Of course, that is rather difficult because in theory he will be eligible for release half way through his prison sentence, but I have no control over whether he will do that, so I am going to say ... it will take effect upon his release..."

12. In the case of R v Needham [2016] EWCA Crim 455, guidance was given by this court on the approach to be taken when applying section 35A and 35B of the Road Traffic Offenders Act 1988, dealing with the requirement to extend the disqualification period to take account of a custodial sentence. The appropriate extension to the disqualification period, given a sentence of 3 years and 3 months is 19 months rounded down, being half of the custodial term. Therefore, applying sections 35A and 35B of the Road Traffic Offenders Act 1988, the 18-month disqualification should have been extended by 19 months, making 37 months. However, the period served under the interim order needs to be taken into account. Accordingly, the extended disqualification is for 36 months. This reflects the reduction in the sentence upon count 1.
13. We should observe that a sentencer is not required to predict the date of release upon an offender when imposing an extended disqualification under section 35A of the 1988 Act. The period of extension is designed to allow the disqualification to bite at the point of automatic release from a custodial sentence. Therefore, the order commences at the date of sentence.
14. Accordingly, we allow this appeal and we reduce the custodial term on count 1, quashing the present sentence for assault occasioning actual bodily harm, we now impose a sentence of 3 years. The sentence on count 2 of 3 months' imprisonment consecutively remains unaffected. We adjust the disqualification from driving to an extended disqualification for 3 years. All other orders remain unaffected. To this extent the appeal is allowed.

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