R v Grant Christopher Smith
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 21 July 2015 |
| Neutral Citation | [2015] EWCA Crim 1482 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 201500993 A8 |
| Date | 21 July 2015 |
[2015] EWCA Crim 1482
Lady Justice Macur DBE
Mr Justice Green
His Honour Judge Bidder QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
No: 201500993 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr N Holland appeared on behalf of the Appellant
The Crown was not present and was unrepresented
This is an appeal against sentence with leave of the single judge.
On 6 February 2015, the appellant was sentenced in the Crown Court at Portsmouth on two counts of burglary of a dwelling house and wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. He had pleaded guilty to the charge of burglary but was convicted by a jury in relation to the charge of wounding with intent. He was sentenced to 12 years' imprisonment for the section 18 offence and to 6 years' imprisonment for the burglary, the sentences to be concurrent. This therefore entailed a total sentence of 12 years' imprisonment.
The appeal concerns the dividing line between categories 1 and 2 of the assault definitive guidelines. In particular, it focuses upon the proper interpretation of factors indicating greater harm. In the guidelines, these are set out in the following terms:
"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"
In the guidelines, factors indicating lesser harm are described in the following way:
"Injury which is less serious in the context of the offence."
There are two additional points to make about this statement in the guidelines: first, the guidelines state in relation to harm that "serious injury must normally be present". The reference to "normally" is an indication that an offence may abnormally be a category 1 offence even where the harm is less than serious. Secondly, the guidelines state in relation to the definition of harm:
"The court should determine the offender's culpability and the harm caused, or intended, by reference only to the factors below (as demonstrated by the presence of one or more). These factors comprise the principal factual elements of the offence and should determine the category."
We will return to these particular criteria later in this judgment.
The facts relating to this appeal may be summarised relatively briefly. The appellant was separated from his wife, Mr Debbie Smith. She had formed a relationship with the complainant, Mr David Snudden. Mrs Smith and Mr Snudden went on holiday to Spain in the course of July 2014. Whilst on holiday, the appellant sent texts to Mrs Smith which comprised naked pictures of herself taken during the period when the appellant and Mrs Smith were together. The appellant then telephoned the couple. Mr Snudden took the call. It was alleged that during the course of this conversation threats to kill were made. The conversation, including the threats, formed the basis of count 1 on the indictment, but in due course this was rejected by the jury.
Nonetheless, both Mr Snudden and Mrs Smith were concerned at the tenor of the conversation and they arranged to meet the police upon their return from holiday. They returned to the United Kingdom on 29 July 2014. They went to Mr Snudden's house in Farnham. At about 3 am, the appellant broke in. He was in possession of a baseball bat, which the appellant used to threaten Mr Snudden. Mrs Smith, fearing violence, threw herself on top of Mr Snudden in order to protect him. She was told to get out of the way by the appellant. He then struck Mr Snudden, who raised his arms to protect himself, and the blow inflicted upon him with the baseball bat caused him to sustain two fractures to his left arm and lacerations to his forehead. This ultimately required nine stitches.
Mrs Smith called the police. Mr Snudden and the appellant began to tussle. Mr Snudden got the appellant into a headlock and punched him in the face in self-defence, but at this point Mr Snudden felt disorientated and woozy. He lay down on the bed, at which point the appellant swung the baseball bat and struck him on the rear of his head. Such was the force of the blow that the bat broke into two pieces. This blow caused Mr Snudden to sustain a laceration behind his left ear, which subsequently required three stitches. Mr Snudden was, however, still capable of defending himself, and in due course the appellant left the property through the front door followed by Mr Snudden. The appellant was subsequently arrested, and in the course of his interview admitted trespass and assault upon Mr Snudden, who he claimed had been having an affair with his wife for nine months.
Instead of the incident being indicted as a single section 18 offence, the appellant was indicted on five different counts, comprising making a threat to kill, aggravated burglary, burglary, wounding with intent, and, unlawful wounding. The count based on unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 was an alternative to the count of wounding with intent contrary to section 18 of the same Act. The appellant pleaded guilty to the charges of burglary and unlawful wounding contrary to section 20; he pleaded not guilty to making a threat to kill, aggravated burglary and to the section 18 offence. Following a trial, he was acquitted on count 1 (making a threat to kill) and count 2 (aggravated burglary). He was, however, convicted of the section 18 offence and therefore the charge under section 20 was not proceeded with.
The nub of this appeal focuses upon the approach adopted by the judge in passing sentence on the section 18 offence. This was the most serious charge on the indictment and it focused upon the final blow inflicted upon Mr Snudden when he was lying prone upon the bed. In his sentencing remarks, the judge made a number of observations about the incident. He concluded, in effect, that there was a degree of premeditation in the events leading up to the violence. He considered that the appellant had a significant character flaw, namely a high self-regard. The breakup of the marriage was treated by the appellant as an affront. The pre-sentence report indicated that the appellant had some degree of victim empathy but also a level of detachment from the events that had occurred. The appellant appeared neither shocked nor frightened at his own behaviour, and he certainly did not consider the consequences of his action at the time. The violence continued notwithstanding that Mrs Smith was calling the police during the section 18 blow, and her scream at the infliction of this violence could be heard on the recording of the 999 call. The injuries were significant, but, said the judge, could have been much worse. In that regard, the appellant was lucky. He was of previous good character. The judge accepted that the appellant did not meet the requirements of dangerousness. The judge accepted that there was limited, albeit not full, remorse.
The particular part of the sentencing remarks which lie at the heart of this appeal are as follows:
"The sentencing guidelines, I have to have very much in mind, and they set out what are the ranges of sentencing. I have considered where this should fall and it seems to me that this is a category 1 offence. This means it was greater harm and higher culpability. I do not propose to set out the features as set out in the sentencing guidelines. I have already identified them in the sentencing remarks so far. There are statutory other aggravating factors, including, it seems to me here, the location, the timing, the ongoing effect on the victim. I have read the victim impact statement from Mr Snudden and Mrs Smith. It seems to me, without hesitation, that makes it a category 1 offence. I do not accept Mr Blain's analysis that this should be category 2. The injury that was caused caused hospital treatment, stitching, and considerable lasting effect to Mr Snudden.
In passing sentence I have to have very much in mind the totality...
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