Poullain, R v [2009] EWCA Crim 269

Case No 200804648/A6[2009] EWCA Crim 269
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 10 February 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE CALVERT-SMITH
HIS HONOUR JUDGE PAGET QC
(Sitting as a Judge in the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
FREDERIC MARCELL POULLAINComputer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Wilson appeared for Applicant
J U D G M E N T

JUDGE PAGET:

[1]On 27 June 2008 in the Crown Court at Liverpool, the applicant was convicted following a trial of assault occasioning actual bodily harm, which was the second count in the indictment. There was another count, count 1, which was ordered to remain on the file and other counts which were not proceeded with.[2]On 28 July he was sentenced by His Honour Judge Harris QC to an extended sentence of seven years pursuant to section 227 of the Criminal Justice Act 2003, comprising a custodial term of four years' imprisonment and an extension period, that is an extended period of licence, of three years, less 186 days spent on remand. That sentence was unlawful because under section 227(2) the combined length of the custodial term and the extension period must not exceed the maximum sentence for the offence. The maximum sentence for assault occasioning actual bodily harm is five years' imprisonment.[3]That was appreciated, and on 19 September 2008 the same judge, His Honour Judge Harris QC, varied the sentence to an extended sentence of five years pursuant to section 227, comprising a custodial term of four years' imprisonment and an extension period of one year less the 186 days spent on remand. The sentence was not varied in the presence of counsel, who had been informed that the judge intended to revise the sentence and had waived his right to attend, but there was a subsequent hearing on 19 September in order to communicate the variation to the applicant.[4]The applicant has been represented before us by Mr Wilson who appeared for him in the Crown Court. He renews his application for leave to appeal against sentence after refusal by the single judge.[5]The facts were that the complainant, Natalie Reeves, and the applicant started a relationship in September 2007. Every couple of weeks the applicant would stay at Miss Reeves' home for four to five days at a time. The applicant began to talk of marriage which Miss Reeves found to be possessive and overbearing and it became a matter that they argued about.[6]On 21 January 2008 the applicant and Miss Reeves spent the evening with friends. At about midnight the friends left and Miss Reeves went to bed. At that stage the applicant became argumentative and goaded her about spending time with her friends. He became irate and said he was going. She became frightened and really quiet as she did not want to provoke any violence. The applicant packed and then again said he was leaving and so Miss Reeves said goodbye. With that the applicant pulled Miss Reeves out of the bed and started to push her in the chest while shouting. He hit her to the chest with the palms of his hands really hard, causing her to be lifted off her feet and backwards to a distance of about five feet. She landed in the corner of a balcony, hurting her left shoulder and the back of her head.[7]She said the applicant looked really angry and she was scared for her life. When she got to her feet, the applicant threw her onto the bed, got on top of her and started to strangle her. In her evidence she said she passed out. When cross-examined, she said she had just started to lose full consciousness.[8]Miss Reeves described being shocked and dizzy as she came to her senses and found the applicant on the bed beside her. She went to the bathroom. The applicant followed and pushed her again, causing her to fall into the bath and bang her head. Miss Reeves said that the applicant had then pulled her out of the bath. There was a slight difference. She said by her top. The judge when sentencing stated that the applicant had dragged her out by her hair. But perhaps that difference is of no very great significance.[9]Miss Reeves was crying hysterically as the applicant continued to push her around. He told her to go upstairs. He threw bottles, compact discs and a guitar at her. He picked up a bottle and aimed a number of blows at her head and body. She dodged the blows but some damage was caused to musical equipment. She fought back and they both fell to the floor. The applicant then went into the kitchen and obtained a large knife from a knife block. He came at her with it raised above his shoulder. He pushed her backwards and she fell, again hitting her head. He straddled her, putting the knife tip to her neck, and asked her to give him a reason why he should not do this. She said this in her statement, "I then lied and told him I was pregnant in order to stop him killing me. I started to say it was my fault and I was sorry." She said she was desperate and willing to do anything to save her life. She went to the kitchen. She thought that if she took some tablets to harm herself the applicant might feel sorry for her and stop. She took the tablets. The applicant told her that if she was sick he would stab her. She pleaded with the applicant to forget what had happened and to make up. He said that if she was serious she should get her passport and go to France with him. She thought there might be a chance to escape so she agreed.[10]When they left, the applicant took a knife with him. He threatened to kill her if she tried to escape. At a service station on the M6 in Cheshire Miss Reeves said she needed to go to the toilet to be sick. The applicant escorted her to the toilet and said he would wait outside. Miss Reeves managed to leave through a fire exit. She approached staff and the police were called. She suffered bruising to her arms, chest, shoulders, back and legs and she had scratches to her neck and complained of bumps to her head, but she was discharged from hospital without treatment. Later that morning the applicant was arrested after police officers stopped his van.[11]In passing sentence the learned judge said that the applicant had been convicted of a sustained and vicious assault during much of which he had been beside himself with anger and unjustified jealousy. It was a horrific and traumatic incident which put the victim in fear of her life at times and, more generally, of serious injury. The soft tissue injuries were significant, but did not constitute serious harm as defined by the Criminal Justice Act 2003. That, however, was a matter of pure luck. Such was his violence that the victim could readily have suffered serious physical injury and, in addition, serious psychological harm. By far the most serious element of the offence had been arming himself with a large knife which he had held to the victim's throat and used to menace her. Given his overwhelming anger and loss of control, there had been an obvious risk that had she done anything or said anything to provoke him further, or even struggled more wildly, he may have caused her, deliberately or recklessly, some serious physical harm. Given the facts of the incident this was a particularly serious form of occasioning actual bodily harm. Even unpremeditated assaults involving a knife by a first-time offender carried a sentencing range of two to four years. He was not a first time offender.[12]In the pre-sentence report he maintained his denial of responsibility for his violence against the victim. He had attempted to displace blame to her and had consistently minimised the violence he had used. He had shown not the slightest insight or empathy for the suffering and terror which she experienced, nor had he demonstrated the slightest recognition of his own problems with aggression and anger management. He posed a high risk of harm to the public. He had a propensity to use or threaten violence to impose his will by way of anger and reprisal or for some other cause which he perceived to be justified. He had a propensity to arm himself with a dangerous weapon. There was always the risk that as he lost control the situation could get out of hand and the weapon might be used intentionally or accidentally to cause serious harm. He presented a significant risk of serious harm, physical or psychological, to members of the public as a result of the commission of further specified offences.[13]The protection of the public required an indeterminate sentence. The determinate sentence would have been four years and the licence was extended by three years as we have already recited. That was the unlawful sentence which was then corrected, reducing the term to four years and the extended licence period to one year to afford maximum protection to the public.[14]We pause simply to say that it appears that the learned judge used the word "indeterminate" when what he meant was extended, but it is clear from his sentencing remarks that he intended to pass, and did pass, an extended sentence.[15]The applicant was born on 4 August 1977. He was 31 years old at the time. There are 11 previous convictions recorded against him for 16 offences. They include convictions in France for possessing a firearm with suitable ammunition, possessing an offensive weapon in a public place on two occasions, causing grievous bodily harm, threatening behaviour, assault occasioning actual bodily harm and ill-treatment or wilful neglect of a person without mental capacity. There is also one caution for having a bladed article some time ago.[16]The pre-sentence report, to which we have already made reference in reciting the sentencing remarks, did indeed say that the applicant did not accept responsibility for his actions and maintained that he acted in self-defence. At times he portrayed himself as the victim. He felt he had attempted to help someone with mental health, financial and drug problems and she had repaid him by concocting this story for her own gain. There was a pattern of violent offending behaviour. However, this was the first conviction for violence to an intimate partner which indicated a degree of escalation in seriousness. The writer's opinion was that there was a medium risk of reconviction. The applicant showed no remorse for the victim, was unwilling to consider that he might have an issue in relation to his temper and aggression. His actions were impulsive with little consideration for the consequences which could have been considerably more serious. There was evidence of justification and minimisation on his part.[17]If the present pattern of violence was to be reversed, intervention was required to address his thinking and attitude. He was unwilling to engage in intervention and would require considerable work to challenge his thinking and to increase motivation before he was suitable for more intense intervention. He presented a high risk of harm to the public, particularly in situations of conflict involving either adult males or adult females with whom he was in an intimate relationship.[18]In his grounds of appeal, which Mr Wilson has presented attractively and succinctly before us, Mr Wilson submits, essentially, that, given the relatively minor injuries, the sentence in this case was manifestly excessive. He says that the injuries do not approach the top bracket of sentencing for this particular offence, which was the bracket into which the learned judge undoubtedly put this case.[19]Mr Wilson realistically concedes that the applicant was perhaps fortunate that the injuries were not more serious. He further concedes, and rightly so, that the injuries alone are not the only factor and that this must have been a terrifying ordeal for Miss Reeves.[20]He also suggests that if grievous bodily harm had been the result and the charge had been grievous bodily harm not with intent, in other words contrary to section 20, the sentence would not have been any different. But the trouble with that argument is that both an assault occasioning actual bodily harm and wounding contrary to section 20, or causing grievous bodily harm contrary to section 20, carry the same maximum, namely five years' imprisonment. We think it not insignificant that Parliament has chosen to equate the seriousness of both offences, which perhaps is a further indication of the fact, as Mr Wilson has rightly conceded, that the seriousness of the injuries alone are not the only factor.[21]In all the circumstances, we agree with the comments of the single judge in this case, that this was a particularly serious case of assault occasioning actual bodily harm which was contested. The custodial sentence which the judge imposed was one year less than the maximum. Mr Wilson made reference in his written grounds of appeal, although he did not cite it before us today, to the case of R v S Burt and others [2006] 2 Cr App R(S) 35, where the appellant Denton committed a more serious assault and had worse antecedents but in fact received a shorter custodial sentence.[22]As the single

judge said in refusing leave:

"I am not persuaded that either the case of Denton referred to us by your counsel, in which the defendant pleaded guilty, or the Sentencing Guideline Council guidelines, mean that a four year term was manifestly excessive. The extended sentence was plainly justified in the light of the danger which you present."
[23]For the same reasons, it seems to us that this was a proper sentence and that this application must be refused.

Cited in 1 later judgment