King, R. v [2009] EWCA Crim 1990

[2009] EWCA Crim 1990Case No 200903454/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 9th September 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COULSON
Between
R E G I N ACrownv
Between
DYLAN JAMES KING
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 7831 8838(Official Shorthand Writers to the Court)
Mr R Altham appeared for Appellant
J U D G M E N T
[1]MR JUSTICE COULSON: The appellant is now 18. On 22nd May 2009 at Liverpool Crown Court he was convicted of one count of inflicting grievous bodily harm. On 17th June His Honour Judge Holloway sentenced him to 18 months' detention in a young offender institution. He appeals against that sentence with the leave of the single judge.[2]The facts of the offence were briefly these. In the early hours of 6th July 2008 the complainant, a 46-year-old man called Mr Colin Winrow, was walking home after a night out in Southport. He was approached by the appellant and by Dale Johnson who were abusive towards him. Johnson pushed Mr Winrow and then punched him on the arm and chest causing him to stumble backwards. The appellant then punched Mr Winrow in the face, just under the right eye. Mr Winrow stumbled back but remained on his feet despite further punches. He then ran off. Later he saw the appellant and Johnson again. He crossed the road to avoid them. Johnson crossed the road and assaulted Mr Winrow again. Subsequently police officers arrested Johnson although the appellant ran off.[3]Mr Winrow suffered a fractured right cheekbone, which required an operation to have it reset. He also sustained a bloody nose and soreness and bruising to his left harm. He needed stitches for a wound to his right shoulder.[4]On 15th November 2008 the appellant was arrested. He denied all knowledge of the assault.[5]Johnson pleaded guilty to assault in the Magistrates' Court and was sentenced to 4 months' imprisonment. The appellant denied the charge of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 but was convicted after a trial. Judge Holloway described the offence as "an unpleasant attack" which caused serious injury and sentenced the appellant to 18 months' detention.[6]The appeal against sentence, as advanced by Mr Altham, is based on the proposition that the sentence was manifestly excessive, because it was outside the Sentencing Guideline Council Definitive guideline on Assault published in February 2008. Therefore it is necessary to consider briefly the guideline and two subsequent authorities.[7]The guideline identifies four categories of offence under section 20. For the least serious (category 4 ("other assault where no weapon has been used") the recommended starting point is 6 months' imprisonment, with a recommended range between a community order and 9 months' imprisonment. Category 3 is described as "premeditated assault where no weapon has been used" with a recommended starting point of 9 months' imprisonment and a range of between 6 and 18 months.[8]The second most serious category (category 2) is "premeditated assault where a weapon has been used or other assault where particularly grave injury results or a weapon has been used." In that category the starting point is 18 months with a range of between 1 and 3 years. All these guideline sentences are based on a first-time adult offender convicted after a trial.[9]Two cases in recent times have considered what is meant by a "particularly grave injury". In R v Olawo [2008] 2 Cr App R(S), the appellant was convicted of a section 20 assault which was not premeditated and which caused injury to the victim's collar bone. On appeal this court reduced the sentence from 20 months' imprisonment to 12 months. In considering what was meant by particularly serious harm, Plender J said:
"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."
[10]In R v Shannon [2009] 1 Cr Appr R(S) 95, the appellant pursued a victim without provocation, punched him and broke his jaw. He pleaded guilty to inflicting grievous bodily harm. His sentence was reduced from 12 months to 8 months. The court concluded that the fractured jaw could not be described as particularly grave injury.[11]It is plain that in sentencing this appellant Judge Holloway considered that, by reference to the SGC guideline, this was a category 2 case involving a particularly grave injury. However, following the approach in Olawo and Shannon, we cannot agree with that conclusion. The fractured cheekbone, although a serious injury, cannot be described as 'harm which is particularly serious by the standards of grievous bodily harm generally'.[12]Accordingly it is plain that this is not a category 2 case, there being no premeditation, no weapon and no particularly grave injury. Neither is it a category 3 case because it was not a premeditated assault. It is therefore ostensibly a category 4 case.[13]However, it is important to remind ourselves, as this court has done on a number of occasions recently, that these SCG categories are not designed to act as a rigid straitjacket for every conceivable kind of section 20 assault and must not be slavishly followed in every case. They are simply a series of common sense recommendations to be considered against the facts of each case. They are emphatically not there simply to encourage box ticking.[14]This case is perhaps a good example of the need to approach the guidelines carefully. Although, as we have said, this is ostensibly a category 4 case, we consider that it has a large number of aggravating features. This was an unprovoked assault which happened at night in which one man was set upon without any justification, by two young men, who decided to cause the victim physical injury simply because they could.[15]Whilst the fractured cheekbone is not a particularly grave injury in the context of grievous bodily harm, it is, in our view, a serious injury, which demands that the perpetrator receive an appropriate custodial sentence.[16]For all those reasons we have concluded that the sentence of 18 months was wrong in principle because it was not in accordance with the SGC guidelines. In our judgment, a term of 12 months' detention, although higher than the recommended maximum term for category 4, is justified on the facts of this case by reason of the aggravating factors that we have noted. A term of 12 months is, we believe, in accordance with the general approach of the SGC guidelines on assault.[17]Therefore, we quash the sentence of 18 months and substitute a sentence of 12 months' detention.