REGINA v DAVID HAYES LATHAN MACK [2025] EWCA Crim 750

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT
MINSHULL STREET MANCHESTER
HIS HONOUR JUDGE MacADAM
CP NO: 06QQ0225224; 06QQ0244521
[2025] EWCA Crim 750Case No CASE NOs: 202500278 A3 202500293 A3Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
REGINADAVID HAYES LATHAN MACK
Before
Lord Justice SinghMrs Justice CuttsHis Honour Judge ForsterMR PATRICK WILLIAMSON appeared on behalf of the Appellant HayesMR HOWARD BERNSTEIN appeared on behalf of the Appellant MackDate 20 February 2025

LORD JUSTICE SINGH:

Introduction

[1]These are two appeals against sentence brought with the leave of the single judge.[2]The sentences under appeal were passed by His Honour Judge MacAdam on 20 December 2024 in the Crown Court at Manchester Minshull Street.

The judge had these two appellants before him to sentence in respect of a number of offences.

[4]The first appellant, Mr Hayes, had pleaded guilty to an offence of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. The judge imposed a sentence of 22 months' imprisonment. An appropriate statutory surcharge order was made.[5]The other appellant is Mr Mack. On the main offence, which was inflicting grievous bodily harm, the judge imposed a sentence of 30 months. In so far as it may be necessary to clarify, given the appellant's age, that was a period of detention in a young offenders' institution rather than imprisonment , and we make that clear in this judgment now.[6]There were two other matters in relation to Mr Mack for which the judge had to pass sentence.[7]The first was an offence of handling stolen goods, contrary to section 22(1) of the Theft Act 1968, to which the appellant had pleaded guilty. The judge imposed a sentence of 1-month custody but made that concurrent. No complaint is made before this court about that.[8]The last matter the judge had to deal with was that Mr Mack had been the subject at the time of his current offending of a suspended sentence order imposed on 13 January 2023 at the Crown Court at Bournemouth for two offences of possession of a Class A drug with intent to supply and one of assaulting an emergency worker. In total, the appellant was then given a custodial sentence of 23 months, which was suspended. The judge on this occasion decided to activate the suspended sentence order to the extent that he imposed a sentence of 3 months' custody and made that consecutive to the sentence of 30 months' custody which he imposed for the main offence under section 20. Accordingly, that made a total sentence in Mr Mack's case of 33 months' detention. Again a statutory surcharge order was imposed.[9]Before this court there had been a suggestion in the summary by the Criminal Appeal Office that the activation of a 3-month period of detention for the suspended sentence order was not appropriate. Mr Bernstein, who has appeared on behalf of Mr Mack today, has made it clear that he does not make any complaint either about the period of 3 months which was activated or about the fact that the judge made that sentence consecutive to the main sentence. Accordingly, we make it clear that we shall not be interfering in any way with the decision taken by the sentencing judge in relation to the suspended sentence. The facts - the main offence[10]On 17 May 2004, at around 1.50 pm, the complainant, a Mr Tayebi, was at the Bikes & Beyond shop in Oldham. He was causing a nuisance in the shop so the shopkeeper asked him to leave. After Mr Tayebi left, the shopkeeper closed the door. Mr Tayebi tried to get back into the shop and banged on the window. The shopkeeper opened the door and Mr Tayebi ran away. The commotion drew the attention of these appellants, who were walking past at the time.[11]CCTV footage from the shop and the street outside captured the assault on Mr Tayebi by both appellants. Hayes approached Mr Tayebi and pushed him into a parked motorcycle. Both appellants then set upon him, punching him repeatedly. The shopkeeper tried to stop the assault by getting in between the appellants and Mr Tayebi, but he was unable to stop them and the assault continued. Mr Tayebi was on the floor. Hayes kicked him in the head.[12]Mr Tayebi was taken to hospital in an ambulance suffering from significant facial injuries. Medical notes confirmed he sustained an open wound of 3 cms to the right eyebrow and bruising and haematoma to the right eye. The injuries to the right eye were such that medics were not able to see the pupil. Due to the pain suffered by Mr Tayebi a full external examination could not be conducted. The left upper chest was tender and there was bruising to the left side, from the back and to the middle of the chest, and the back of the abdomen on the right side. He was placed in a neck block and given a CT scan. He had suffered a fractured right eye socket and it was suspected, but not confirmed, that there might be a bleed on the brain. Mr Tayebi had no recollection of the assault.[13]Both appellants were arrested in the vicinity following information provided by members of the public. Mack gave a no comment interview. Hayes confirmed that he had been correctly identified on the CCTV and said the victim got up and punched him so he pushed him back. He said the victim was threatening to kill an 80-year-old man and he was "not having that". The facts - handling stolen goods (Mack only)[14]On 11 September 2021 the complainant, Mr Shafiqul, was a delivery driver working in Oldham. At 10.30 pm he had attended in order to make a delivery. As he was returning to his car, he saw three males wearing balaclavas running towards him. The first male grabbed his collar and pressed a knife to his stomach. The other two males grabbed his phone and car keys. The three men then ran off and drove away in the complainant's VW Polo. The police were called. At around midnight the stolen Polo was involved in an attempted robbery of a Ferrari at a car park in Saddleworth. During that incident a group of males attempted to block the exit to the car park and tried the door handles of the vehicle before the owner managed to drive away. A co-defendant, Jack Holt, was subsequently forensically linked to the Ferrari. The police were notified of the robbery attempt and during a search of the location they discovered the stolen VW Polo. Mack and Holt were discovered in nearby woodland and were arrested. Later forensic analysis of the vehicle uncovered Mack's fingerprints on the front nearside window and his DNA was found on the interior door handles. He pleaded guilty to handling the Polo but denied the attempted robbery allegation. Eventually no evidence was offered in respect of him for the attempted robbery. The facts - suspended sentence order (Mack only)[15]On 3 July 2022 known drug users were observed by police loitering at a location in Bournemouth. Mack was seen to arrive and exchanges were made with the drug users. Police officers approached Mack, who fell as he attempted to run away. As one officer attempted to detain him, Mack punched the officer in the right eyebrow area. Upon searching him police found 45 wraps of cocaine and heroin amounting to a street value of approximately £1,300. Sentencing remarks[16]In his sentencing remarks the judge said that the injuries in this case should be characterised as "a grave injury"; in other words, that they fell into category 2 harm by reference to the definitive guideline on offences under section 20 of the 1861 Act. The judge also concluded that both the appellants were as responsible as each other.[17]Turning to culpability, the judge concluded that this case fell into medium culpability (that is, category B) because the appellants had both played a joint role in this group activity, a weapon was used (that is, a kick to the head) and the victim was vulnerable because he was suffering from a mental health illness which required hospitalisation. The judge noted, therefore, that the starting point recommended in the guideline is 2 years' custody with a suggested range of 1 to 3 years.[18]The judge said that there was the aggravating feature that both appellants had previous convictions, although Mack's were far more relevant than Hayes's.[19]The judge proposed to give credit of 25 per cent to reflect the guilty pleas, although he inaccurately said they had been entered at the first available opportunity. No complaint is made before this court about the amount of credit given for the guilty pleas.[20]The judge then decided to go to the top of the category range for a category 2B offence (that is, 3 years' custody). In the case of Hayes he took into account the positive features referred to in his pre-sentence report, in particular his expressions of remorse and regret, and the fact that this would be his first prison sentence. The judge also noted that Hayes was a working man. Those factors brought the sentence down to 30 months and so, after giving 25 per cent credit for the guilty plea, the eventual sentence passed was one of 22 months' immediate imprisonment.[21]The sentencing exercise for Mack was more complicated. Although he was younger, he had a more serious criminal record. This led the judge to increase the notional sentence of 3 years to 4 years. He also had to sentence Mack for handling stolen goods, for which he passed a sentence of 1 month, made concurrent. Having regard to the principle of totality the judge then reduced that to 40 months and reduced it by a further 25 per cent to reflect the guilty plea to 30 months. As we have mentioned, the judge also felt it necessary to activate 3 months of the sentence imposed under the suspended sentence order and made that consecutive, with the result that the total sentence passed was one of 33 months' custody. Submissions on behalf of the appellant Hayes[22]On behalf of the appellant Hayes, Mr Patrick Williamson, in helpful and succinct submissions, has made two main points. First and foremost, he submits that the categorisation of the offence as medium harm because there was a "grave injury" was incorrect. Secondly, and in any event, he submits the judge was wrong then to adjust upwards from the starting point to the upper limit of the available range.[23]Mr Williamson submits that the evidence of injury caused to the victim did not clearly support the existence of a bleed on the brain. The most serious remaining injury was a fractured eye socket, which he realistically acknowledges constituted really serious harm, but that will be inherent in all offences under section 20. He submits that it was not grave harm . He also reminds this court that there was no victim personal statement and so the judge did not have either clear medical evidence on this point or evidence from the victim himself as to any lasting effect of his injuries.[24]Mr Williamson also submits that there was no justification for increasing the notional sentence from a starting point in the definitive guideline to the top of the recommended range. The sole aggravating factor was the antecedent history, but the judge himself acknowledged that that was not relevant because it did not disclose any offences of violence, being concerned with possession or supply of cannabis. Submissions on behalf of the appellant Mack[25]On behalf of the appellant Mack, Mr Bernstein submits the sentence was manifestly excessive and adopts the submissions made by Mr Williamson. He submits that the section 20 offence should not have been categorised as a 2B offence since 3B was the correct categorisation. He also submits that the appellant played a lesser role to that of his co-defendant and this should have been reflected in the sentence. Finally, he submits that the sentence should have reflected the appellant's mitigation, in particular his youth: he was only a teenager at the time of the offence; he lacked maturity and there was a background of learning difficulties. Mack had been diagnosed with ADHD and it had been said that he was liable to be exploited. The sentencing framework[26]Before addressing the ground of appeal, we think it important to note that section 63 of the Sentencing Act 2020 (the "Sentencing Code") provides that:
" Assessing seriousness Where a court is considering the seriousness of any offence, it must consider— (a) the offender's culpability in committing the offence, and (b) any harm which the offence— (i) caused (ii) was intended to cause, or (iii) might foreseeably have caused."
[27]As this court observed in R v Dixon [2023] EWCA Crim 280 ; [2003] 2 Cr App R (S) 31 at [26] to [27], section 63 is identical to section 143(1) of the Criminal Justice Act 2003.[28]Paragraph C 1.11 of the Sentencing Council's guideline on Overarching Principles: Seriousness , provides guidance as to the effect of the then section 143(1):
"In some cases no actual harm may have resulted and the court will be concerned with assessing the relative dangerousness of the offender's conduct; it will consider the likelihood of harm occurring and the gravity of the harm that could have resulted."
[29]At paragraph 1.19 the same guideline further states that:
"If much more harm, or much less harm has been caused by the offence than the offender intended or foresaw, the culpability of the offender, depending on the circumstances, may be regarded as carrying greater or lesser weight as appropriate."
Our assessment[30]In our judgment the judge was entitled to regard the nature of the attack as being relevant to the harm that might foreseeably have been caused pursuant to section 63(b)(iii) of the Sentencing Code. As that provision makes clear, and this court said in Dixon , the sentencing court is not confined to considering only the harm actually caused. It can take into account the harm that might foreseeably have been caused. In a case like the present, where an offender kicks his victim who is lying on the ground and does so with a shod foot, it is only by good fortune that the injuries caused are not more serious than they might easily and foreseeably have been. Accordingly, if the right category of harm was category 3, the sentencing court would be entitled to place the offence towards the top of that category.[31]Nevertheless, we have reached the conclusion, accepting the main submission made on behalf of both these appellants, that this was not a case of a "grave injury". Serious though the injuries were, that is inherent in a section 20 offence. In our judgment they should have been placed into category 3 harm.[32]The definitive guideline for section 20 offences recommends a starting point of 1-year custody for a category 3B case, with a range of a high-level community order up to 2 years' custody. In our judgment, the judge would have been entitled, as we have said, to go to the top of that range (that is, 2 years' custody).[33]In the case of Mack, where there were other matters that needed to be taken into account, particularly in so far as the sentence for handling stolen goods was to be made concurrent, and in view of his more serious criminal record, the judge would then have been entitled to go above that figure.[34]The judge was then required to give appropriate credit for the guilty pleas. No complaint is made about the discount of 25 per cent.[35]In all the circumstances and bearing in mind that sentencing is an art and not a mathematical exercise, we have reached the conclusion that the appropriate sentence for the section 20 offence, having regard to mitigation and the guilty pleas, in the case of Hayes would have been one of 14 months' custody. In the case of Mack it would have been a sentence of 21 months' custody.[36]In the case of Mack, the judge imposed a sentence of 1 month for the offence of handling stolen goods. There is no reason to interfere with that sentence, which will remain as it was and it will remain concurrent. The judge also activated the suspended sentence order and imposed a sentence of 3 months, made consecutive. There is no reason to interfere with any of that, as Mr Bernstein has fairly acknowledged. Conclusion[37]For the reasons we have given, we allow these appeals to the following extent:• In the case of Hayes the sentence for the offence under section 20 of the Offences Against the Person Act 1861 is reduced from 22 months to 14 months' custody.• In the case of Mack the sentence for the section 20 offence is reduced from 30 months to 21 months. In his case, therefore, the total sentence becomes one of 24 months' detention.

Cited in 1 later judgment