Grantham, R. v [2021] EWCA Crim 658

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.[2021] EWCA Crim 658Case No 202002604/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 21 April 2021
Strand
London
WC2A 2LL
Before
LADY JUSTICE CARR DBEMR JUSTICE LAVENDERTHE RECORDER OF NEWCASTLEHIS HONOUR JUDGE SLOAN QC(Sitting as a Judge of the CACD)
Between
REGINACrownV
Between
KERNEY GRANTHAM__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 18-22 Furnival Street, London EC4A 1JSTel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR J MANN appeared for Appellant_________J U D G M E N T

The judge selected too high a starting point after trial.

[2]The judge failed to properly discount the sentence for the guilty plea indicated at the plea and trial preparation hearing.[3]The judge failed to give sufficient weight to the principle of totality. In relation to the first ground of appeal, Mr Mann submitted that this was a category 2 case rather than a category 1 case. He conceded, as he had to, that it was a case of higher culpability, but he submitted that it was not a case of greater harm. Specifically, he contended that the judge was wrong to find that it was a repeated assault for the purposes of the sentencing guideline, having regard in particular to what this court said in R v Smith (Grant Christopher) [2016] 1 Cr.App.R (S) 8 at paragraph 18 and in R v Xue [2020] 2 Cr.App.R (S) 49, [2020] EWCA Crim 587 at paragraph 32.11. discount of 25 per cent.12. 16 September 2020 the appellant had served less than two years of the six-year custodial term of that sentence. The judge accepted that the totality principle obliged him to reduce the sentence which he would have imposed for the offence if it had stood alone, but13. Mr Mann submitted that a reduction of one out of 12 years was inadequate.14. follows:
“Injury (which includes disease transmission and/or psychological harm) which is serious in the context of the offence (must normally be present). Victim is particularly vulnerable because of personal circumstances. Sustained or repeated assault on the same victim.”
Sustained or repeated assault on the same victim.” 15. this offence. There was no suggestion that Mr Heath was particularly vulnerable. 16. EWCA Crim 944; R v Smith (Jordan Lee) [2020] EWCA Crim 1427; R v Healey [2021] 17. EWCA Crim 181 (a case of assault occasioning actual bodily harm); and R v O'Neill 18. [2021] EWCA Crim 489.

A number of points emerge from these decisions and from the guidelines:

[1]It is important to bear in mind the context, namely that the starting point for a category 2 offence is six years' custody, whereas for a category 1 offence it is 12 years' custody.[2]It follows that, as stated in Smith (Grant Christopher) at paragraph 18, in order for a sentence to be compliant with the test of proportionality, the facts warranting the higher sentence should reflect the difference in the guidelines.[3]We note that the context also includes the words "(must normally be present)" in the first of the factors indicating greater harm. It is unusual for a list of factors in a sentencing guideline to include such words. These words suggest that the second and third factors are the exception rather than the norm.[4]In the light of this context, it is appropriate to ask, as in Xue at paragraph 32, whether the assault in a particular case was a sustained or repeated assault that was so prolonged or persistent as to take it out of the norm for section 18 offences and therefore to constitute greater harm justifying a starting point of 12 years’ rather than six years' custody.[5]Each case has to be assessed on its own facts: see again Smith (Grant Christopher) at paragraph 18. This will involve consideration of factors such as the number of blows, the number, seriousness and location of wounds or other injuries and the duration of any assault.[6]As stated in Smith (Grant Christopher) at paragraph 18, the phrases "sustained and repeated" may imply different things. An assault may be sustained because it continued over the course of a significant period of time, even though it did not necessarily involve a substantial number of blows. An assault may be repeated because it involves multiple blows over a short period of time.[7]As in Smith (Grant Christopher) at paragraph 19 and in Smith (Jordan Lee) at paragraphs 30 to 31, the nature of an assault, if it does not elevate an offence from category 2 to category 1, may contribute to a conclusion that the offence falls in the top end of category 2 or on the borderline between categories 1 and 2.[8]Indeed, the guideline states in the introduction to step two that: "A case of particular gravity, reflected by multiple features of culpability in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features".[9]The guideline also states at step two, in relation to the aggravating and mitigating factors, that:
"In some cases, having considered these factors, it may be appropriate to move outside the identified category range." 28. although that is unclear. 29. offence. 30. adjustment for aggravating or mitigating factors. 31. do grievous bodily harm. 32. guilty plea makes clear that: 33. "
For the purpose of determining the level of reduction in sentence, it is the time when the guilty plea was first indicated to the court which matters." 34. plea. 35. lawyers, which in the circumstances meant that he could not plead guilty at the hearing. In so far as the appellant did not plead guilty at the hearing because of the pandemic, that was not his fault. In so far as the appellant did not plead guilty at the hearing because the 36. judge discouraged him from doing so, that also was not his fault. 37. can expect consecutive sentences with little reduction for totality. 38. that extent this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

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