Fisher, R. v [2009] EWCA Crim 1852

[2009] EWCA Crim 1852Case No 200901832 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 4th August 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GOLDRING
MR JUSTICE BEAN
RECORDER OF KINGSTON-UPON-HULL
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
MATTHEW JOHN FISHER
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 O'Donnell appeared for Appellant
J U D G M E N T
[1]THE RECORDER: On 11th February 2009, at the Crown Court at Ipswich, the appellant pleaded guilty to one offence of assault occasioning actual bodily harm. On 12th March 2009 he was sentenced by His Honour Judge Thompson to an extended sentence of four years, comprising a custodial term of two years' imprisonment and an extension period of two years. He appeals against sentence by leave of the single judge.[2]The appellant and Natalie Hunt had been in a relationship for just over a year. They had separated some time before the offence took place. The relationship had soured as a result, she said, of the appellant's controlling behaviour and his spiteful, unpredictable and at times violent behaviour towards her.[3]On the evening of 26th September 2008, Miss Hunt had some girlfriends round to her house for a party. Later she went out and went round a number of public houses in Lowestoft. On two occasions she bumped into the appellant. On one of those occasions he tried to persuade her to rekindle their relationship. She told him in very clear terms that that was not going to happen. He then suddenly turned on her and punched her once to the face using his clenched first. She fell to the floor on her front. He simply walked away as she lay on the ground.[4]As a result of the punch and the subsequent fall Miss Hunt had injuries to her face. She required dental work, mainly to two chipped front teeth. Initially they were dealt with by way of fillings, but they became painful and infected and required root canal work shortly afterwards. There was a doubtful prognosis and she may lose those teeth altogether.[5]When interviewed, the appellant was in essence saying that the injury had been caused as a result of an accident. He said it was nothing to do with an assault by him.[6]In her victim impact statement, dated 7th October, Miss Hunt said that she had been working with vulnerable 13 to 17 year olds when the injuries happened and she had been very concerned about them seeing her facial injuries due to their own life experiences. Further, she started to have problems with chest pains and bruising which she thought had been a consequence of the force with which she fell to the pavement.[7]The appellant was born on 20th July 1979 and was therefore 30 years of age. He has nine previous convictions for ten offences. They include two offences of assault occasioning actual bodily harm, two offences of threatening behaviour, common assault and an affray. He also has two cautions, including one for section 20 wounding and one for an offence of threatening behaviour.[8]There was a pre-sentence report before the sentencing judge dated 6th March 2009. In it doubt was expressed as to whether the defendant had a realistic perception of the physical and emotional damage he had caused to the complainant. There was, it was said, a medium risk of re-offending. Notice was taken of the fact that he had been to prison three times for offences of violence, one of those had been against a previous partner in similar circumstances to the index offence. There was a pattern of alcohol-related domestic violence underpinned by sexual jealousy. Reference was also made to his high level of alcohol consumption at the weekends.[9]Grounds of appeal drafted by counsel do not criticise the imposition of an extended sentence and wrongly state that the sentence was lawful. In fact, the sentence was unlawful. By section 227(2) of the Criminal Justice Act 2003 the court may impose on the offender an extended sentence of imprisonment if the conditions of subsection (2A) or the conditions of subsection (2B) are met. Subsection (2A) states:
"(2A) The condition in this subsection is that, at the time the offence was committed, the offender had been convicted of an offence specified in Schedule 15A."
Subsection (2B) states:
"(2B) The condition in this subsection is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least four years."
[10]As the learned judge was clearly of the view that a custodial term of four years would not be justified and as the appellant had not been previously convicted of an offence specified on Schedule 15A of the Criminal Justice Act, then the only custodial option to the court was a standard commensurate determinate sentence. In such circumstances this court has no option but to allow the appeal so far as the extension period is concerned.[11]The situation concerning the extended sentence was the only ground upon which leave to appeal was granted by the single judge, the error being first picked up by the single judge. In his grounds of appeal counsel also criticised the length of the custodial term. As we have said, leave was not granted to appeal that part of the sentence. Mr O'Donnell, appearing for the appellant, has renewed his application to raise that point and we have heard him. In essence, his complaint is that too much emphasis was placed on the previous convictions of the appellant.[12]This is the second time this morning that mention has been made of judges taking too much account of previous convictions. It is worth remembering that section 143(2) of the Criminal

Justice Act 2003 states:

"In considering the seriousness of an offence committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to - (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction."
[13]We think that the learned judge in the circumstances of this case was quite right to give considerable weight to this appellant's previous convictions. In our judgment, this was a nasty attack by a man prone to violence. The sentence was not wrong in principle and in view of his previous convictions it was not manifestly excessive. Therefore the appeal is allowed only to the limited extent that we have mentioned already, as we have said, relating to the extension period.