Wells, R v [2010] EWCA Crim 405

Case No 200905817 A4[2010] EWCA Crim 405
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 9 February 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE OPENSHAW
Venue THE RECORDER OF CARDIFF - HHJ NICHOLAS COOKE QC
(SITTING AS A JUDGE OF THE CACD)
Between
R E G I N ACrownv
Between
DANNY WELLS
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 J BLAKE appeared for Appellant
J U D G M E N T
[1]THE RECORDER OF CARDIFF: On 20 October 2009, at the Maidstone Crown Court, after committal for sentence from the Ashford Magistrates' Court, this appellant was sentenced by HHJ Gold QC to 15 months' imprisonment for an offence of assault occasioning actual bodily harm, and 1 months' imprisonment concurrent for an offence of firing an air weapon beyond the premises from which it was fired, contrary to section 21(a) of the Firearms Act 1968. He now appeals against those sentences with the leave the single judge.[2]The sentence of 1 months' imprisonment for the offence contrary to section 21(a) of the Firearms Act 1968 is unlawful, the offence concerned carrying a maximum penalty of a fine at level 3.[3]The facts of this matter may be summarised as follows. On 8 June 2009, the victim of this offending was engaged upon hedge trimming. He was shot by the appellant with an air rifle, the pellet lodging in the victim's face where it remained pending its surgical removal at the time of sentence. On seeing that he had wounded a man, the appellant panicked and hid the gun in a friend's shed. When the police attended, however, the appellant volunteered: "It was me. The rifle is in the shed".[4]The basis upon which the appellant fell to be sentenced appears only from the sentencing judge's remarks:
"You shot a man in the face with an air rifle, centimetres away from his eye. I hear it said on your behalf that you were not aiming at him and that you were aiming at a bird in a hedge. With a degree of hesitation I will deal with you on that basis"
. We, of course, must proceed upon the same basis.[5]The appellant has an unattractive record. He has been convicted of threatening behaviour, resisting a constable, criminal damage, attempted theft, motoring offences, possessing a class B drug, and possessing an offensive weapon. When he was sentenced he was in the early stages of a supervision order, with supervision and unpaid work requirements imposed by the East Kent Magistrates, which, we are informed, has now been revoked.[6]In sentencing, HHJ Gold QC indicated that the appellant would be given full credit for his early guilty pleas and his frankness with the police, to which he was certainly entitled. That seems to indicate that the judge took a starting point of a sentence in excess of 21 months at the end of a trial. The sentencing judge made no reference at all to the Sentencing Guideline Council's relevant Definitive Guideline, and we therefore cannot discover his approach thereto.[7]Upon the basis for sentence as expressly set out, this was a reckless offence rather than one which was premeditated, and therefore the starting point should have been taken from the lowest category in the table which appears in the Sentencing Guidelines Councils Definitive Guideline, at page 17: "Other assaults resulting in minor non-permanent injury: starting point - community order high; sentencing range - community order medium, to 26 weeks custody".[8]A considerable amount of adjustment is then required to arrive at an appropriate sentence in this case. This was an offence of recklessness rather than premeditation. However, a weapon was involved, and one which is capable of causing very serious injury. There is also a significant previous history of offending. There was personal mitigation to which we have referred, involving a troubled background, a sick young child, and caring for his mother.[9]Balancing all of the considerations which we identify, we have come to the conclusion that the appropriate sentence at the end of a trial here would have been one above the range appearing in the table to which we have referred, that is a sentence of 9 months' imprisonment. A full discount for plea reduces that sentence to one of 6 months' imprisonment. Such a sentence would, we believe, be consistent with the examples of sentencing in broadly similar cases to which our attention has been invited, in particular R v Corkhill [1993] 14 Cr App R (S) 543, and R v Kelly [2008] EWCA 2634.[10]Accordingly, we quash the sentence of 15 months' imprisonment and substitute a sentence of 6 months' imprisonment. We also quash the unlawful sentence of 1 months' imprisonment in relation to the offence against section 21(a) of the Firearms Act 1968. The imposition of a financial penalty for that offence would not now be appropriate, and we impose no separate penalty.[11]We note that no order was made forfeiting the air rifle and pellets, an order which it appears to us could and should have been made. No such order can, however, now be made.[12]To the extent we have just indicated, this appeal is allowed.