Abbas, R v [2009] EWCA Crim 1386

Case No 200901240 B2[2009] EWCA Crim 1386
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 11th July 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE GRIFFITH WILLIAMS
Venue RECORDER OF CARDIFF
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
SYED SHAQAISAR ABBAS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr D Gottleib appeared for Appellant
J U D G M E N T
[1]MR JUSTICE GRIFFITH WILLIAMS: At about 2 o'clock in the morning of 24th June last year, the appellant approached a group of about seven people which included the complainant, Mr Monsees. That group was standing outside a bar in the Watford town centre. He barged into the group, and when one of the women in the group asked him to apologise he punched Mr Monsees hard in the face, knocking him to the ground and knocking him unconscious, because he hit his head on the pavement. He ran off, but he was pursued by some members of the group who caught up with him and detained him. The police arrived soon afterwards and he was arrested. Mr Monsees, apart from his loss of consciousness, suffered significant cuts and bruises to his head and to one eye.[2]On 11th February of this year, at the Crown Court at St Albans, the appellant was convicted of assaulting Mr Monsees and occasioning him actual bodily harm, and on 6th March he was sentenced by the trial judge, Mr Recorder Million, to two years' imprisonment. He appeals by leave of the single judge.[3]The appellant was born on 10th April 1985 and so at the date of this offence he was 23 years old. He has one relevant previous conviction for an offence of assault occasioning actual bodily harm, to which he pleaded guilty at the Crown Court at Southwark and for which he was sentenced to a suspended sentence order. That offence was committed on 11th May 2007 and so pre-dated the present offence, but he was on bail for it when he committed the present offence. That, we observe, is to be regarded as an aggravating factor: see section 143(3) of the Criminal Justice Act 2003. The facts of that offence bore some similarities to the present offence, the appellant having punched a man to the head and knocked him to the ground during an argument in a nightclub.[4]The appellant comes from a very respectable family, and there were a number of references provided to the sentencing judge from persons within the local community who knew him and his family very well. They wrote of his honesty, his politeness and his concerning nature, and it is perfectly clear to this court, as it was to the sentencing judge, that when he is not in drink he is well behaved.[5]On his behalf it was submitted that the sentence is manifestly excessive and that it does not reflect the fact that there was only the one punch. It was also submitted by Mr Gottleib that the judge was wrong to treat the offending on bail as an aggravating factor without also taking into account the appellant's progress under the terms of the suspended sentence order. By the date of his sentence for this offence he had completed 58 and a half hours of the 240 hours unpaid work requirement of that order.[6]We do not accept that his response to the suspended sentence order reduces the impact of the aggravating factor of offending on bail, or balances it out. His response to that order was to be expected and is part of his punishment for that offence. It might have been a relevant consideration had it been possible for the sentencing judge to consider a non-custodial sentence, but it was not.[7]The Sentencing Guidelines Council's definitive guideline on assault and other offences against the person advises that in cases of assault occasioning actual bodily harm, where there is premeditated, minor non-permanent injury occasioned by a defendant who is of previous good character, the sentencing range should be 12 to 36 weeks' custody. That is not to be read by itself because a sentencing judge is required to have regard to issues of culpability and harm, and the Guidelines in the General Principle section provide (at paragraph 9):
"Although the degree of (or lack of) physical harm suffered by a victim may generally influence sentence for offences against the person, the broad statutory definition of harm encompasses not only the harm actually caused by an offence but also any harm that the offence was intended to cause or might foreseeably have caused."
[8]Before we consider the guidelines in any further detail, it is necessary to refer to the case of Marples [1998] 1 Cr App R (S) 335 because Mr Gottleib referred this court to that decision and relies upon that decision in support of his submission that the appropriate sentence in this case was one of six months' imprisonment. In Marples the appellant pleaded guilty to assault occasioning actual bodily harm. He and a friend had pushed their way into a taxi queue where other people had been waiting for a substantial period of time. An altercation arose, and when another man intervened to calm the appellant down, he struck him in the face, fracturing his nose. The sentence of six months' imprisonment imposed in that case was reduced by the Court of Appeal to one of four months. Ebsworth J, giving the judgment of the court, referred to two previous decisions of the Court of Appeal, Fanson [1992] 13 Cr App R (S) 78 and Audit [1994] 15 Cr App R (S) 36. She said:
"The Court, having determined that a custodial sentence was right in principle and indeed inevitable, went on to consider the length. The question therefore was whether or not the sentence that was imposed for the violence in that case was as short as was reasonably possible and commensurate with the violence actually used. That is the proper test in a case such as this where there is no antecedent history of violence or drunkenness. We have come to the conclusion that whilst it could be argued that the judge, in reaching an overall sentence of six months' imprisonment, was taking account of the breach of the community service order, overall we have come to the conclusion that a sentence of six months' imprisonment is significantly longer than was in all the circumstances justified, having reminded ourselves of what would have been an appropriate sentence had there been a trial."
[9]We return to a consideration of the guidelines. In our judgment, this was not a case of premeditated violence; this was a case of a drunken over-reaction to events. We are of the view that this offence of non-premeditated violence called for a sentence significantly higher than 36 weeks. There were three aggravating factors: the first was the offending on bail; the second was his commission of an offence of violence in almost identical circumstances, punching a man in a public place to the face; the third aggravating factor is that, although this was just one punch, it was one punch which caused a loss of consciousness. Such violence, as this court well knows, on occasion causes death and the person responsible is guilty of manslaughter. As the Definitive Guideline emphasises, culpability must have regard to the harm that might foreseeably have been caused by the act of violence.[10]The conclusion we have reached is that, following a trial, the appropriate sentence in this case would have been one of 15 months' imprisonment. We accordingly quash the sentence of two years' imprisonment and substitute for it a sentence of 15 months' imprisonment. To that extent and that extent only this appeal is allowed.

LORD JUSTICE RIX: The appeal is allowed. The sentence of two years is quashed and a sentence of 15 months is substituted.