R v Shaun Russell [2024] EWCA Crim 1861

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[2024] EWCA Crim 1861

Venue Royal Courts of Justice

Date Friday, 12 April 2024

Before

LORD JUSTICE EDIS

MR JUSTICE MORRIS

HIS HONOUR JUDGE PETER JOHNSON

Between

REXCrown

Between

SHAUN RUSSELL

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Mr. R. Fraser appeared for Applicant.

for The Crown were not represented.

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JUDGMENT

[1]This is an appeal against sentence with the leave of the single judge.

[2]On 8 December 2023 at the Crown Court at Woolwich the appellant was convicted on count 2 of an offence of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. At the same time, he was acquitted of causing grievous bodily harm with intent, contrary to section 18 of that Act (count 1); assault occasioning actual bodily harm (count 3) and sexual assault (count 4). On 12 January 2024 in the same court the appellant was sentenced to 42 months' imprisonment and made subject to a restraining order for five years, preventing him from contacting directly or indirectly Stephen Clements and from contacting directly or indirectly Carly Russell. The facts

[3]On 2 June 2023 the appellant encountered his estranged wife Carly Russell and her new partner Stephen Clements in Gravesend. There was a verbal altercation on the street, part of which continued outside The Crown public house. Later, Mrs Russell returned to The Crown to speak with the appellant. The two had been in an acrimonious dispute for several months, but at that point were witnessed speaking amicably before Mrs Russell left. The appellant had been drinking throughout the day and was intoxicated.

[4]At around closing time he travelled to his home in a taxi but spoke on the telephone to Mrs Russell, who initially invited him to attend her home to discuss matters further. He then travelled by taxi to Mrs Russell's home. Shortly before he arrived, Mrs Russell decided to rescind the invitation and contacted a friend to tell the appellant of this. The appellant, however, was only informed of that as he arrived at the address in the early hours of the morning. He knocked on the door, Mr Clements answered and the appellant entered the property. There was then an argument that turned into a physical altercation during which the appellant hit Mr Clements with a Hoover pole. Mr Clements and Mrs Russell stated that the appellant repeatedly kicked and stamped on Mr Clements. The appellant denied this.

[5]When police officers arrived, Mr Clements was lying semi-conscious of the floor, as shown by body worn footage, and there were marks on his back. In addition, during the tussle the appellant had gouged Mr Clements's right eye, causing him great pain. Mr Clements described this action as deliberate. This was also denied by the appellant who claimed that he acted in self-defence.

[6]The appellant's case before the jury was he had acted in self-defence. He said that Mr Clements had attacked him from behind with the Hoover pole and he had then hit Mr Clements hard in the face once with the pole. He had denied any kicking and deliberate eye gouging. It was not disputed that at some point Mrs Russell had hit the appellant with a frying pan. He had then pushed her away, which caused her to injure her elbow. That was the subject of count 3. The appellant's case that was any injury to Mrs Russell was caused in reasonable self-defence. As regards count 4, Mrs Russell alleged that the appellant had grabbed her between the legs. The appellant denied that that had happened.

[7]Mr Clements was taken to hospital. His injuries included a significant right-sided orbit fracture, a significant right-sided medial orbit wall and floor fracture, which resulted in a significantly sunken eyeball.

[8]The appellant had no previous convictions but had a caution for criminal damage. Material before the sentencing judge

[9]There was before the recorder a letter from Mr Robertson, a consultant craniofacial and oral and maxillofacial surgeon, dated 30 November 2023, and a victim personal statement from Mr Clements dated 11 January 2024. Mr Robertson's letter stated that Mr Clements had been under his care since the assault in June. Mr Clements was unable to see through his right eye and reported that this had caused a significant functional decline in his ability to work, as well as to attend to his normal activities of daily living, and that he was required to wear a patch for most of the day. A then recent MRI scan showed that the optic nerve was intact, but despite this Mr Clements was unable to see through his eye.

[10]In his victim personal statement Mr Clements stated that he had been signed off work indefinitely, and he had been told by the job centre that he had limited capability to work. As a result of the eye injury he now struggled to do simple everyday chores. He could not continue his work as an electrician and a plumber, since with only one eye, it was not safe for him to carry on working. He had been advised that his eyesight might never return following reconstructive surgery, which at that time was being contemplated. The sentencing remarks

[11]In his sentencing remarks the learned recorder recited the background facts broadly, as we have set out. He specifically found that the appellant, "hit Mr Clements on multiple occasions with a Hoover pole and he can be seen lying semi-conscious on the floor". He further found that the inference from marks on Mr Clements back, "must be that you kicked him whilst he was on the floor", and further, that the appellant had "gouged his right eye".

[12]As regards the injury to Mr Clements, that was the most serious injury and as at that time of sentence Mr Clements had no sight in that eye. The recorder referred to the fact that in his victim impact statement Mr Clements had described the on-going effect of the injury, and the recorder referred to the fact that Mr Robertson's letter stated thatas of late November he had no sight in the eye. The recorder continued:

"It’s true that further medical interventions are proposed, but there is no indication before the court that any improvement is considered likely or even feasible. Mr Clements has described how he has to wear an eye-patch when he goes out. He finds this embarrassing and it's had a significant psychological effect on him. It goes without saying that the loss of sight in his right eye has had an impact on his ability to work and to enjoy ordinary day-to-day activities."

[13]The recorder referred to the fact that the appellant's actions on the night had been affected by his drunken state and feelings of jealousy towards Mrs Russell. The recorder observed that the appellant's conduct had been out of character, he had no previous convictions and he had read the character references, all of which spoke highly of him.

[14]Turning to the relevant sentencing guidelines, the recorder found that the offence fell within culpability category B due to the use of a weapon, namely the Hoover pole. However, this was not an object designed to cause serious harm. The serious assault was the eye gouging.

The recorder continued:

"Gouging someone's eye goes way beyond any form of defensive act, and in my judgment, constitutes an independent act of aggression, even if you are not the instigator of the violence in this case. In my judgment, I am not satisfied that this is a case of excessive self-defence and I proceed on the basis that you were the aggressor, having barged into Mrs Russell'shome while drunk and in a highly charged emotional state."

[16]The recorder found that the offence fell into category 1 harm. Mr Clements had lost sight in his right eye, to all intents and purposes. Whilst he recognised that there was a prospect of medical intervention leading to an improvement, nevertheless, on the basis of the letter written by Mr Robertson, the consultant, at the end of November 2023, the recorder was satisfied that this was a permanent injury, and consequently, fell into category 1. He added that the offending was aggravated by the fact that the incident took place in a domestic context late at night when he was intoxicated. The recorder took into account by way of mitigation the fact that this was the appellant's first conviction. He accepted that he had expressed remorse and had recognised the wrongdoing in so far as he had offered a plea, which the Crown did not accept. He pointed out further that the appellant had remained at the scene having called 999 himself and accepted that the appellant did so because he was concerned about Mr Clements. The recorder also pointed out and accepted that at that time the appellant was in a bad emotional state. Overall, the recorder concluded that the aggravating features slightly outweighed the mitigation and that on the basis of category 1B the sentence would be 3 years, 6 months. Finally, as regards the restraining orders, the recorder said, "I think it is appropriate in this case to grant a restraining order to prevent contact" between the appellant and Mr Clements and Mrs Russell for a term of five years. The grounds of appeal

[17]The grounds of appeal are, first, that the basis upon which the judge sentenced the appellant was contrary to the jury's verdict, and consequently, the sentence was manifestly excessive. Secondly, it was neither necessary nor proportionate to make a restraining order in favour of either complainant. In his written grounds and in oral argument before us today Mr Fraser on behalf of the appellant submitted that the section 20 offence properly fell within category C2 of the sentencing guidelines, rather than category B1, as had been found by the recorder. As to culpability, he submitted that the recorder was wrong to find that the appellant had not been acting in excessive self-defence, and had he correctly made such a finding then this was a case of culpability category C. He submits the recorder sentenced the appellant on a basis of fact which is inconsistent with the jury's verdicts on counts 1 and 3. As regards count 1, the recorder's findings of numerous strikes with the pole, kicking and stamping, and in particular, eye gouging, if accepted by the jury, would have been powerful evidence of intent to cause grievous bodily harm on count 1. However, the acquittal on count 1 suggests that the jury must have rejected that evidence. As regards count 3, the acquittal is consistent with the appellant's case that he had pushed Mrs Russell but in reasonable self-defence. In those circumstances, it is submitted that the recorder could not reject the possibility that the applicant had acted in excessive self-defence, yet he had effectively concluded that he could not be sure that the appellant had acted in self-defence at all. Moreover, it is submitted that the recorder inconsistently found that the appellant was both, "not the instigator of violence", but was "the aggressor", and that the gouging was "an independent act of aggression". Mr Fraser submits that the judge did not properly explain how he reached the conclusion he did on this issue of excessive self-defence.

[18]As regards harm, Mr Fraser submits that the harm fell into category 2 (rather than category 1) because the injury to Mr Clements eye, even if permanent and irreversible, did not have a substantial and long-term effect on his ability to carry out his normal day-to-day activities or on his ability to work as required by Category 1 in the guideline. The optic nerve was still intact and Mr Robertson's expertise was in reconstructive surgery and not ophthalmology. The recorder should have been cautious about Mt Clements’s own evidence. There was anecdotal evidence that he did not consistently wear an eye patch. Mr Fraser also refers to the case of R v Chall

[2019] EWCA Crim 865

, where there may be a need to treat a victim personal statement with some caution as to whether the harm suffered may have unintentionally been overstated. Mr Fraser emphasises that there is no independent expert evidence in this case from an ophthalmologist.

[19]As regards the restraining orders, it was submitted that these were neither necessary nor proportionate. There had been a long history between the appellant and his estranged wife, with each party making complaints against the other. An order in respect of Mrs Russell leaves the appellant vulnerable to future complaints being made against him. As regards Mr Clements, there was no history between the two of them. Further, the recorder gave no reasons for his decision other than saying it was “appropriate”. Discussion

[20]We consider first the issue of culpability under the relevant sentencing guideline. We take account of the fact that the correct approach to the determination of the factual basis upon which to pass a sentence is that, when there is more than one possible interpretation of a jury's verdict or verdicts, then the judge must make up his own mind to the criminal standard as to the factual basis upon which to pass sentence. If there is more than one possible interpretation and the judge is not sure of any of them, then in accordance with basic fairness, he is obliged to pass a sentence on the basis of the interpretation (whether in whole or in relevant part), most favourable to the defendant (See R v King

[2017] EWCA Crim 128

at paragraph 31).

[21]The issue here is whether the recorder was wrong to find that this was not a case of excessive self-defence. We do not consider that he erred in this finding. Whilst it might have been preferable if he had stated expressly where on this issue the burden of proof lies and if he had identified the standard of proof, there is no reason to believe that he did not apply the correct approach. It is clear that he found that the jury had found that the eye gouging amounted to the infliction of grievous bodily harm under count 2. Moreover, the acquittals on count 1 in relation to Mr Clements and on counts 3 and 4 in relation to Mrs Russell do not indicate that the jury had found that the appellant was acting in self-defence in relation to the eye injury. The acquittal on count 1 indicates no more than the jury was not satisfied that there was intent to cause grievous bodily harm. Moreover, the recorder was entitled to make the finding distinguishing between the appellant not initially being the instigator of violence and the separate and independent act of aggression constituted by the eye gouging. He expressly found this not to be an act in self-defence. For these reasons and given the use of the weapon, the recorder correctly placed the offence into Category B for culpability.

[22]Secondly, as to harm, in our view there was sufficient evidence before the court for the recorder to conclude that it fell within category 1. On the basis of the state of the evidence at that time- the loss of sight in one eye for seven months and on-going, coupled with the opinion of Mr Robertson - the recorder was entitled to conclude that the injury was permanent and irreversible. Further, there was the evidence of Mr Clements in his victim personal statement to the effect of the injury not only on his day-to-day activities, but also quite understandably, the impact of his ability to work as an electrician with the sight of one eye only. We have received today an informal update on Mr Clements's condition and in the light of that information, we have no reason to doubt the correctness of the recorder's findings as to the permanent nature and the effect of the injury. Accordingly, in our judgment the recorder was entitled properly to place the offence in Category B1 of the guidelines.

[23]Finally, as to the restraining orders, whilst the recorder's reasoning was brief, we do not accept the contention that such orders were neither necessary nor proportionate. There was a long history of conflict and confrontation between the appellant and Mrs Russell. As regards Mr Clements, in the light of the nature of the injuries he sustained, and the fact that he was the appellant's wife's new partner, such a restraining order met the relevant criteria.

[24]For those reasons we consider that the recorder was properly entitled to impose those orders.

[25]Accordingly, for these reasons this appeal is dismissed. __________