R v Gunning [2013] EWCA Crim 179

[2013] EWCA Crim 179Case No 201206257/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 17th January 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MRS JUSTICE SWIFT DBE
MR JUSTICE HOLROYDE
Between
R E G I N ACrownGARETH ERNEST GUNNINGDefendant
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)
Mrs S Ferrier appeared for Appellant
J U D G M E N T
[1]MR JUSTICE HOLROYDE: On 24th October 2012 in the Crown Court at Merthyr Tydfil before His Honour Judge Williams this appellant pleaded guilty to two offences of assault occasioning actual bodily harm and one offence of criminal damage. He was sentenced to a total of 2 years' imprisonment, comprising 12 months for the earlier assault, 28 days concurrently for the criminal damage committed at the same time and 12 months consecutively for the later assault. A restraining order was also made. He now appeals against his sentence by leave of the single judge.[2]The victim of the offences was the appellant's then girlfriend, N. On Saturday 4th August 2012 it seems that the couple spent much of the evening arguing. The appellant engaged in what the learned judge aptly described as "boorish and provocative behaviour". This included the offence of criminal damage which took the particularly mean spirited and vindictive form of the appellant deliberately smashing framed photographs which he knew to be of sentimental value to Miss N. Miss N endeavoured not to rise to the bait but when the appellant made an attempt to cut himself she told him he was sick and twisted. The appellant thereupon grabbed her tightly by the throat, brought his face repeatedly into contact with hers and then head-butted her. He held her down on the floor and hid her mobile phone so that she could not ring anyone. She then struck him with a saucepan.[3]Two days later, on Monday 6th August, there was a further argument and the appellant told Miss N to leave his flat. She began to pack her clothes. The appellant pushed her and then again head-butted her. He made a dramatic gesture, intended to convince her that if she left he would kill himself. Miss N nonetheless did leave. A neighbour who saw her a short time later described her as in pain, extremely upset and in fear of what the appellant would do to her.[4]By good fortune the physical injuries to Miss N were not as serious as they might have been. She attended hospital on Tuesday 7th August. The injuries comprised, for the most part, bruising of the face and arms and a black eye.[5]When arrested and interviewed the appellant made only limited admissions. He denied head-butting and claimed that Miss N herself had caused some of the marks of injury visible upon her. However, he gave an early indication of his intention to plead guilty, with a view to the case being listed in accordance with the early guilty plea scheme in operation at that court.[6]The applicant, through his solicitors, put forward a proposed basis of plea but when that was rejected by the Crown Prosecution Service he did not seek to pursue it. He pleaded guilty on his first appearance before the Crown Court and was sentenced the same day.[7]The appellant is now 36 years old. He has numerous previous convictions, mainly for offences involving dishonesty and the misuse of drugs. He has no convictions for offences of direct violence but has been convicted of harassment of a different former partner.[8]In his sentencing remarks the learned judge said that it was agreed that this was a category 1 offence according to the Sentencing Guidelines. He indicated a starting point for each of the offences of assault of 16 months. He allowed only a 25% reduction for the guilty pleas because the appellant had only that day abandoned a basis of plea which sought to minimise his criminality.[9]In her realistic written and brief oral submissions counsel, Mrs Ferrier, acknowledges that immediate imprisonment was unavoidable but argues that the starting point for the first assault was too high, that the credit given for the guilty pleas was too low and that in the result the total sentence was manifestly excessive.[10]As we understand it from Mrs Ferrier's written submissions, whilst she acknowledged in the lower court that the case came within category 1 of the Sentencing Guidelines, she meant by that no more than the totality of the offending should be regarded as falling into that category. It may be that there was some mutual misunderstanding on this point in the lower court, as the judge appears to have understood that there was an acceptance that each of the two offences viewed individually would fall within category 1. Be that as it may, our view of these nasty offences of violence is as follows. Plainly both were serious offences, for which no sentence other than immediate imprisonment would suffice. Both involved higher culpability because of the head-butting. The later offence also involved greater harm because of the element of repetition of the violence only two days after the first incident. But the earlier offence cannot in our judgment be said to have involved greater harm; serious injury was not caused on that occasion. We therefore accept Mrs Ferrier's submission that in that respect the judge fell into error.[11]We also accept the submission that the appellant was entitled to full credit for his guilty pleas. As we understand it, he did all that was required of him under the provisions of the early guilty plea scheme and was therefore entitled to expect to receive full credit. The judge was sentencing some 2 months before the decision of this court in Caley & Ors [2012] EWCA Crim 2821 and therefore did not have the advantage of the guidance given by the Vice-President in the judgment of the court in that case. At paragraph 18 the court said that the first reasonable opportunity for a defendant to plead guilty:
"… is normally either at the Magistrates' Court or immediately on arrival in the Crown Court – whether at a preliminary hearing or by way of a locally-approved system for indicating plea through his solicitors. There will, we think, ordinarily be some, but limited, difference in public benefits between the two stages of the Magistrates' Court and the first arrival in the Crown Court, but for practical purposes either can properly, we think, ordinarily attract the maximum percentage reduction (one third) provided for by the SGC Guidelines."
[12]For those reasons we accept the submission that the total sentence was manifestly excessive. In our judgment the appropriate starting point for the first offence of assault was 12 months' imprisonment. For the second offence, having regard to totality, the appropriate starting point was 15 months. In each case we take the view that the appellant should receive full credit for his plea. No criticism is made of the concurrent sentence of 28 days' imprisonment for the criminal damage and we see no reason to alter it.[13]In the result we quash the sentences imposed below for the two offences of assault. On count 2, we substitute a sentence of 8 months' imprisonment and on count 3 we substitute a consecutive sentence of 10 months' imprisonment. The total sentence accordingly is reduced from 2 years to 18 months. The sentence on count 1 and the restraining order remain as before. The order under section 240 of the Criminal Justice Act 2003, that 27 days should count towards sentence remains unaltered. To the extent which we have indicated this appeal succeeds.

Cited in 1 later judgment