Olawo v R. [2008] EWCA Crim 528

[2008] EWCA Crim 528Case No 2008/00104 A5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Basildon Crown Court
Mr Recorder Chandler
T2007022
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/03/2008
Before
LORD JUSTICE HOOPERMR JUSTICE BLAKEMR JUSTICE PLENDER
Between
Olawale OlawoAppellantThe QueenRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Jacintha Stringer (instructed by Wainwright & Cummins) for AppellantHearing Hearing date: 7 March 2008
Judgment
[1]On 6th November 2007 at the Crown Court in Basildon the appellant was convicted on a single count of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. On 4th December he was sentenced by Recorder Chandler to imprisonment for a period of 20 months. Against that sentence he now appears by leave of Wyn Williams, J.[2]The essential facts are as follows. At about 1.30 PM on 20th February 2007 a certified enforcement officer called Stephen Walker arrived at Mr Olawo’s house in Chafford Hundred with a warrant to enforce an order to pay £595.36. The order had, apparently, been obtained by the London Borough of Waltham Forest in respect of a parking penalty; but as the Recorder accepted, Mr Olawo was entitled to believe that he was not liable to pay the sum in question. Mr Olawo had paid the parking penalty in question, although he disputed liability and the London Borough of Waltham Forest had withdrawn the penalty and had refunded to Mr Olawo the sum that he had paid. All that remained was the bailiffs’ charges which, it appears, had been invoiced to the Borough after the settlement of the question of the parking penalty. The bailiffs’ charges were the subject of a separate challenge in the courts.[3]Mr Olawo was not at home when Mr Walker arrived; but Mr Olawo’s au pair admitted Mr Walker and telephoned Mr Olawo who returned home. Mr Walker said that he was first alerted to Mr Olawo’s presence when “I felt a gentle tap on my arm and presumed it to be the lady.” The defendant twice told Mr Walker to get out; but he did not do so. There was then a scuffle. In Mr Walker’s words:
“He began lifting me up and I grabbed him round the neck in a headlock to stop him lifting me up. Neither of us were speaking. The male – Mr Owalo – had such strength, as he lifted me up, I was lifted straight above his head and I was shocked at how easily he lifted me. I don’t recall anything further at all from this point, but then next thing I recall, I was laying on the pavement by my van”
. Mr Walker was found to have a fracture of the collar bone.[4]The Recorder sentenced the appellant on the basis that he had picked up Mr Walker “leaving him to fall to the floor outside”. It was not alleged that Mr Owalo had punched or kicked Mr Walker or had deliberately inflicted injury on him; or that he had used unreasonable force upon him while in the house. The conviction is to be explained on the ground that jury found that the appellant had been reckless of Mr Walker’s safety when leaving him to fall to the ground by his vehicle.[5]When passing sentence the Recorder stated that he had been referred to the Sentencing Guidelines for this type of offence. It is however of some importance to appreciate that the document to which he was referred was not the Sentencing Guidelines issued in February 2008 but a consultation document which was later to mature into those Sentencing Guidelines. There are significant differences between the consultation document and the Sentencing Guidelines of February 2008. The document that influenced the Recorder divided offences against section 20 of the 1861 Act into four categories.[6]The Recorder thought that the present case fell into second of the categories set out in the consultative document, which applies to any Pre-meditated assault or spontaneous assault where a weapon has been carried or used. For such an offence, the starting point is 18 months’ imprisonment and the range 12 months to 3 years’ custody. The Recorder took 18 months as the starting point for his sentence. As he acknowledged, however, in the case before him “There was certainly no weapon. There no clear evidence that it was particularly pre-meditated”. If the consultative document were to be used as a guide when passing sentence, the offence would fall more naturally into the fourth category: spontaneous assault where no weapon has been used. For such an offence, the starting point is 24 weeks custody and the recommended range was a Community Order to 36 weeks in custody. The consultative guidelines were not of course binding on the Recorder.[7]If the Sentencing Guidelines of February 2008 had been available to the Recorder, he would, no doubt, have considered whether the offence in question fell within the category of assaults, not being pre-meditated where particularly grave injury results or a weapon has been used. For offences in that category, also, the starting point is a sentence of 18 months’ custody. In that context, however, the expression particularly grave injury must be read in the context, which is that of the offence of inflicting grievous bodily harm. Particularly serious harm must mean harm which is particularly serious by the standards of grievous bodily harm generally. In the event, however, the Recorder’s sentence preceded the publication of those Guidelines.[8]We have concluded that the Recorder made an error when reasoning that the case before him fell into the category of offences described in the consultative document as Pre-meditated assaults or spontaneous assaults where a weapon has been carried or used. This led him to begin with too high a starting point and thus into imposing too high a sentence.[9]In this case the Appellant is a man of good character; he is to be sentenced on the premise that he was guilty of no more than recklessness in carrying Mr Walker out of his house and allowing him to fall beside his vehicle. He is a married man, whose imprisonment inevitably causes hardship to his family. He is a civil engineer who would, we were told, have returned to Nigeria to accept a new appointment there, had his return not been prevented by his imprisonment. He did not have the benefit of a plea of guilty. We bear all these factors in mind when setting the appropriate period of imprisonment.[10]Against that we must weigh, however, the fact that the present case presents a serious aggravating feature, namely that the victim was a certified enforcement officer. Paragraph 19 of the Guidelines restates the position as it was understood to be before their implementation: There is a general aggravating factor “Offence is committed against those working in the public sector or providing a service to the public”. This would naturally include those providing emergency services. As with many offences, assaults can cause more than immediate harm to an individual; they can result in reduced, delayed or cancelled services and often involve additional costs to replace or provide cover for victims who are unable to work. They can also discourage people from working in certain jobs and can undermine public confidence. It is not appropriate to list all of those who might come within this provision, and it is for the court to assess the circumstances of an individual case.[11]Additionally we must bear in mind that Mr Owalo’s action caused the officer to suffer an injury to his collar-bone which was both significant and painful.[12]Certified enforcement officers, like Mr Walker, perform duties essential for the administration of justice; and are vulnerable to attack by judgment debtors. To protect them the courts must impose substantial penalties on any who assault them. Where an attack is committed against such an officer, this must be regarded as a seriously aggravating feature. Where, as in this case, the assault entails the infliction of grievous bodily harm, an immediate custodial sentence will almost always be appropriate.[13]We conclude that the sentence of 20 months, imposed by the Recorder, was manifestly excessive and that it should be reduced to a period of immediate imprisonment of twelve months.

Cited in 1 later judgment