R v Wayne Bryson [2025] EWCA Crim 569

[2025] EWCA Crim 569Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Friday, 24 January 2025
Before
LORD JUSTICE EDISMR JUSTICE SAINIHIS HONOUR JUDGE LEONARD KC(Sitting as a Judge of the CACD)REFERENCE BY THE ATTORNEY GENERAL UNDERS.36 OF THE CRIMINAL JUSTICE ACT 1988
Between
REXCrownV
Between
WAYNE BRYSON__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR W MARTIN appeared for Attorney GeneralMR C MCNICHOLAS appeared for Offender_________J U D G M E N T

LORD JUSTICE EDIS:

[1]This is an application by His Majesty's Solicitor General for leave to refer a sentence for review by this court under section 36 of the Criminal Justice Act 1988 on the ground that it was unduly lenient and that it should therefore be increased. We give leave.[2]The offender is now 31 years old. On 27 September 2024, following a trial, he was convicted by the jury of two counts on an indictment. Count 1 alleged an offence of wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861 and count 2 alleged an offence of having an article with a blade or point, contrary to section 139 of the Criminal Justice Act 1988. Those convictions placed the offender in breach of a suspended sentence order for an offence of battery, contrary to section 39 of the Criminal Justice Act 1988 which had been imposed upon him a matter of days before the incident which resulted in his convictions on the indictment.[3]The judge, His Honour Judge Marson KC, sentenced the offender on 28 October 2024 in the Crown Court at Durham. On count 1 he imposed an extended sentence with a custodial term of eight years and six months and an extended licence period of four years. On count 2 there was a sentence of two years' imprisonment concurrent and the suspended sentence of 10 weeks was imposed in full but ordered to run concurrently with the sentence on count 1. Other consequential orders were made by the judge following those convictions on which nothing now turns.[4]In a nutshell, the incident occurred on 28~February~2024 when the offender was involved in a violent altercation with a man named Mark Hunt, who was the victim. The judge dealt with the offender following the trial on the basis that he had instigated this fight and struck the first blow. They fought inside a property before going outside to carry on. The offender had armed himself with a small kitchen knife, with a blade of about three inches in length. He stabbed his victim Mr Hunt four times, once in the chest and three times as he sought to escape by stabbing him in the back. He then fled the scene. The victim received rapid and skilled medical treatment at the scene and was then taken to hospital where he received further treatment.[5]The Solicitor General in summary submits that the sentence of the judge followed a categorisation for guideline purposes of the offence as falling within Category A2. That, says the Solicitor General through Mr Martin, was an error because the victim's injuries were life-threatening, as the judge found, and that should have put the case into a higher category, namely A1: Category A for culpability, Category 1 for harm. Because he placed it into the lower category the starting point in the guideline is seven years' imprisonment, whereas that for the higher category (into which the Solicitor General says the case should have been placed) is 12 years' imprisonment. That is the submission of the Solicitor General and that is the point on this Reference.[6]It is unnecessary to set out the facts of the matter in very much further detail. It is perhaps significant that after the incident, and after he had left the scene, the offender was seen to be behaving in a rather florid manner. He was covered in blood, he tried to board a bus, the bus driver would not let him on board and at that point he said:
"I've just been stabbed but I think he's dead."
He then did manage to board another bus to a place where he threw the knife into a rubbish bin. He was arrested there. The rubbish bin was searched and the knife recovered. It had his DNA on the handle and mixed DNA belonging to both him and the victim on the blade. He nevertheless denied having used a knife or stabbed anybody, a denial that he maintained all the way through to conviction.[7]It is important to identify precisely what the consequences of those four stab wounds were for the victim. An air ambulance and paramedics attended the scene. They found that he was very unwell. He had weak radial pulse. They gave him a blood transfusion at the scene and administered tranexamic acid to stem the bleeding. It is highly likely that their rapid and skilled intervention saved the victim's life. However, because of it, by the time he got to hospital very shortly afterwards, he was in a condition where his life was no longer at risk. The hospital of course always treat any stab wound to the chest as potentially life-threatening and they dealt with it appropriately. There were two pneumothoraxes which required treatment which they received. The end result is that within a fairly short period of time the victim's life was no longer threatened. He has sustained no long-term or permanent serious injury so far as the medical evidence is concerned. The doctor says that these wounds will leave scars but nothing more than that. The victim himself did not return for medical follow-up following his discharge from hospital. He described some emotional or psychological symptoms in his video-recorded evidence immediately after the episode, but there is no evidence of any further significant harm, whether physical or psychological, persisting beyond the immediate aftermath of the attack.[8]The offender has previous convictions. The most significant of these, with the exception of the suspended sentence order which we have already referred to, are some years old. He has a previous conviction for possession of a knife in a public place from 2011, a conviction for battery in 2016 and another conviction in the same year for common assault. In 2023 he was convicted of a sexual assault and in January 2024 he was convicted of an offence of common assault.[9]We have referred already to the relevant guideline published by the Sentencing Council. At Step One the court is required to assess culpability. It was agreed that this offence was a Category A offence of high culpability because it involved the use of a highly dangerous weapon or weapon equivalent. The guideline makes it clear that a highly dangerous weapon can include weapons such as knives. This attack was done with a knife and falls within culpability A for that reason.[10]The court then is required to assess harm, again by reference to three categories numbered 1 to 3. The pre-amble to this categorisation in the guideline says:
"All cases will involve 'really serious harm', which can be physical or psychological, or wounding. The court should assess the level of harm caused with reference to the impact on the victim."
[11]Category 1 requires at least one of three elements to be present. First, particularly grave or life-threatening injury caused. Secondly, injury results in physical or psychological harm resulting in lifelong dependency on third party care or medical treatment. Thirdly, offence results in permanent, irreversible injury or psychological condition which has a substantial and long term effect on the victim's ability to carry out their normal day to day activities or on their ability to work. Category 2 requires either or both of "a grave injury" or "offence results in a permanent, irreversible injury or condition not falling within Category 1". In the familiar way the guideline then requires the sentencer to move on to consider aggravating and mitigating factors and to arrive at a sentence before any further discount for plea and other matters identified in subsequent steps.[12]The ranges and starting points for the two categories which we are required to consider, namely A1 and A2, are, first of all in respect of A1, a starting point of 12 years and a range of 10 to 16 years. In respect of A2 a starting point of seven years and a range of six to 10 years. The argument in this case is which of those two categories better captured the facts of the offence for which the offender was to be sentenced.[13]The sentencing hearing effectively fell into two parts. First of all there was a hearing on 6 September 2024 when the judge had some material before him. He had of course heard the trial and was intimately familiar with the facts, including the evidence about what harm had befallen the victim. He expressed a view about the categorisation of harm at that hearing. He said:
"So far as the guidelines are concerned there are clearly matters relating to category A2 ... and A1 ... in my judgment it seems to me that this very much falls on the cusp of both. There is an overlap ... It either falls at the bottom of the range of category A1 or at the top of the range of category A2 ... and that's where I am at the moment, so I would propose to deal with it on that basis that it falls at the top of the range of A2."
[14]The judge was unable to proceed to sentence on that occasion because he was concerned, rightly, that the offender may be dangerous, requiring a sentence within the dangerousness regime. He therefore ordered a pre-sentence report to address that question.[15]The hearing was resumed on 28 October 2024 by which time the judge had some further material before him, including an updated statement from Dr Richard Procter, who was the Accident and Emergency Consultant who had dealt with the victim on the night when he was taken to hospital. This said:
"On arrival at hospital the injuries sustained were considered life-threatening. Mr Hunt sustained a hemopneumothorax which had a risk of significant bleeding and required admission to hospital for observation. His stability was only determined after the admission. Any chest stabbing requiring a pre-hospital blood transfusion would be determined life-threatening on arrival to the department."
[16]The prosecution had submitted an updated sentencing note in which they made their case clear. The submission on behalf of the prosecution was that the offence comprised in count 1 should be dealt with for guideline purposes as a Category A1 offence and the starting point was therefore 12 years with the range we have already identified. There was argument at the hearing about that. There was no victim personal statement and nothing further was learnt by the time of this hearing about the impact of the offending on the victim.[17]There was a pre-sentence report. This identified that this offender was immature for his age, that he had undergone a particularly dysfunctional and unfortunate childhood and the impact of all that was that he presented a significant risk of serious harm to the public.[18]There was material by way of mitigation. The offender has taken a very constructive approach to his time in custody and he has expressed, in a way that the judge accepted was entirely genuine, that he wants to get out of prison to rehabilitate himself and to become a good role model for his two children. There were some certificates and so on from the prison to confirm what was being said.[19]The judge dealt with the case in clear and succinct sentencing remarks. We have already summarised his findings in relation to the facts of the matter. On the issue of harm he said:
"Mark Hunt was found to be gravely unwell. He was bleeding heavily and had a very weak pulse. He was losing a great deal of blood and at the scene had to have a hole drilled in his knee in order for him to have a transfusion. Had he not been treated so quickly, the injuries could have been fatal and these injuries were life threatening. It has had a significant effect on him and on his mother, and you have shown no remorse for what you did."
[20]The judge then made his determination that this was a Category A2 offence. He considered the question of dangerousness and found, correctly, that the offender is dangerous and that an extended determinate sentence was therefore required for the protection of the public. It is not necessary to deal further with that because no issue arises about it before us.[21]When assessing the minimum custodial term, the judge referred to the previous convictions of which he was aware. He pointed out that this was a first custodial sentence for this offender. He referred to the good work which the offender had been doing in custody and to the offender's concern about his family. He said this:
"Doing the very best I can, I take as a starting point for the offence of wounding with intent a sentence of 9 years' imprisonment. I shall reduce that to 8½ years to reflect the matters of mitigation."
[22]The judge then went on to deal with the other matters which resulted in concurrent terms of imprisonment, having regard to the principle of totality to which he referred.[23]The Solicitor General's submissions have been cogently and succinctly placed before the court in writing and orally by Mr Martin. The submission can be shortly summarised. The judge found that these injuries were life-threatening. He was undoubtedly right so to find and the Solicitor General says that that finding on its own required him to move into and to stay within Category A1 for the purposes of assessing the custodial term of the extended determinate sentence. The Solicitor General says that in proceeding as he did the judge fell into error. This court should therefore increase the custodial term so that it falls within the Category A1 range.[24]Mr McNicholas on behalf of the offender has also placed persuasive submissions before us in a clear and cogent way. He says, in summary, that the Solicitor General's approach oversimplifies the sentencing exercise which requires the judge to do more than simply identify one feature of the harm and locate it without more in a particular category; it is a more nuanced business than that. Secondly, he submits that if accepted the Solicitor General's submissions would unduly restrict the ability of the judge to reflect the overall impact of the harm done by a particular offence on a particular victim. Finally, and perhaps consequentially from those two initial submissions, Mr McNicholas submits that the sentence which was imposed was within the reasonable range open to the judge.

Discussion and decision

[25]The sentence imposed by the judge was undoubtedly a lenient sentence. The judge had assessed the harm caused in a careful and judicial manner, rather than simply attaching a label to the case from the guideline and mechanistically imposing a particular sentence. That is, in our judgment, the proper approach of a sentencing judge to a case involving this guideline.[26]In this case the injuries were life-threatening for a relatively short time. That threat was rapidly dealt with by the paramedics at the scene and the consultant and his team at the hospital. From that time on the injury was no longer life-threatening. It left no long term consequences of any seriousness apart from the scarring. When looking therefore at all the factors identified in the three bullet points in Harm Category 1 and the two bullet points in Harm Category 2, the judge was required to make an assessment of the impact of this particular injury on this particular victim. Undoubtedly the fact that four stab wounds were inflicted with a knife makes this a very serious offence. That is why it was in Category A for culpability which involves the use of a highly dangerous weapon including a knife. In assessing both culpability and harm the court is confronted with a spectrum which may require a number of factors to be taken into account. In respect of the dangerousness of the weapon, there is a range of dangerousness. This was indeed a dangerous weapon, but it was a weapon with a three-inch blade, it was not a firearm or a machete or a zombie knife. Moreover it was a weapon that was seized in the heat of the moment and then used. None of that means that this was not an extremely serious offence; it was. But it does show where in the spectrum for culpability it might properly be placed. In just the same way when looking at harm the judge has to reflect the fact that this victim might have died. But it is also the case, obviously, that he did not and that he survives without any adverse consequences of the kind which are described if the three bullet points in Category A1 are considered cumulatively. That therefore requires, as we have said, a judicial assessment of the case putting all of those various factors into the balance.[27]The judge did not spell out his working in the way that we have just done but it is clear that that is what he did. For those reasons he concluded that the case fell on the cusp of A1 and A2 which might suggest a sentence before any further adjustment of 10 years. We do not criticise the judge's approach to the categorisation of the offence. He then took it down by reducing it to a term of nine years. It is not entirely clear why a further reduction below the top of the range for Category A2 was warranted but in our judgment the difference between nine years and 10 years in a case of this kind does not render a sentence unduly lenient. As we started these observations, this was undoubtedly a lenient sentence but in our judgment it was not an unduly lenient sentence and that follows from our endorsement of the judge's approach to the multifactorial assessment of culpability and harm which is required in cases of this kind. The difference between a sentence of 10 years, which would have given effect to the judge's approach as identified at the first of the two sentence hearings, and the sentence that he ultimately arrived at, is not one which in our judgment requires the intervention of this court and for those reasons, although we have given leave to the Solicitor General to refer the case to this court, we decline to interfere with the sentence imposed by the judge. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE28. Tel No: 020 7404 140029. Email: rcj@epiqglobal.co.uk