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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Brown, R v [2008] EWCA Crim 1770 (21 July 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1770.html Cite as: [2008] EWCA Crim 1770

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 21 July 2008

1. MR JUSTICE BODEY: The appellant, aged 25, appeals with the leave of the single judge against a sentence imposed upon him on 27th March 2008 at the Gloucester Crown Court for assault occasioning actual bodily harm. The sentence was one of six months' imprisonment suspended for 12 months, together with 150 hours unpaid work. In addition he was ordered to pay £500 compensation to the victim, Brian Hayes.
2. On 2nd March 2007 in the early hours of the morning various young people who had been out for an evening in Taunton were making their ways home. As the appellant and others were getting into a taxi, two young women were engaged in an altercation. The appellant's girlfriend was nearby. At that point the victim went up to them. He may or may not have been intending to do so as peacemaker. The upshot was that as the victim was walking away from the appellant's girlfriend, the appellant jumped up out of the taxi, ran across to him and punched him on the left cheek with a clenched fist. The victim was knocked straight down onto the pavement, whereupon two other males came up and both began kicking him in the head. As this was going on, the appellant was walking away and took no part in it. One of the two other men was convicted and dealt with. The other was cleared by the jury.
3. The appellant was interviewed by the police and initially denied any involvement in this incident. Later, however, on 30th November 2007 at a plea and case management hearing he pleaded guilty to assault occasioning actual bodily harm.
4. In a witness statement of August 2007 the victim said that he had had to attend hospital on at least three occasions since the incident in March 2007. There were times when he had struggled with his breathing because of damage to his nose. At one point fluid had to be drained from his brain. It is unclear from the information before us whether he actually suffered bony injuries to the nose or face, but he spoke at that time (August 2007) of having been asked by the medical experts to consider reconstructive surgery because they thought it necessary, which tends to suggest that he had suffered bony or other serious injuries. At that time he was suffering headaches and nose bleeds and felt that the episode had deeply affected him, as he found himself becoming easily upset and frustrated. In a subsequent victim impact statement dated March 2008 the victim spoke of still suffering severe headaches with a loss of confidence and a sense of unease at going out at night-time.
5. The appellant's basis of plea was that he had been in the taxi intending to go straight home when the victim had put his arm around his (the appellant's) girlfriend's neck. He therefore got out of the taxi, by which time the victim had walked a few metres away from the appellant's girlfriend. He (the appellant) had delivered a single blow with his fist. The victim had gone ground. Thereafter the appellant had done nothing further and was not acting in concert with the other two men when the kicking started.
6. The appellant had only one previous conviction, which was for a drink drive offence committed in July 2004, in other words not involving violence. He had good references. The pre-sentence report was, as Mr Askham has said, favourable to him, estimating a low risk of reoffending generally and regarding him as a low risk of harm to the public. That report describes the appellant as having done well when he came out of the army, obtaining a qualification in surveying and being in full-time work for a firm of surveyors since August 2007. The report described him as willing to pay fines and compensation. It ended up recommending that a community order should be imposed, comprising a requirement to perform 100 hours of unpaid work for the benefit of the community.
7. It is submitted on the appellant's behalf that the sentence of imprisonment was wrong in principle, albeit suspended, and that the compensation order imposed was excessive in amount.
8. It has to be borne in mind that the appellant's only role in this serious attack on the victim was to launch the first punch. He was not involved in the subsequent kicking which it is reasonable to assume was the more responsible for the injuries which the victim sustained. On the other hand, if the appellant had not knocked the victim to the ground, then the remainder of the incident would not have happened.
9. It is suggested in the advice on appeal that this matter could have been disposed of by a high community order because under the Sentencing Guidelines Council's guidance it counted as one where minor permanent injury resulted. We do not accept that only minor injuries were suffered. The injuries to the victim were serious by whomsoever they were caused and they still continued to affect his life detrimentally. We do not consider that a sentence of imprisonment can be described as wrong in principle. Indeed, it seems to us that a punch like this without warning well merited an immediate custodial sentence. Nor do we think that the award of compensation (albeit perhaps high) was excessive, given the extent of the injuries which the victim sustained in an episode which the appellant started, even though the subsequent kicking was probably more to blame for the injuries than the punch. Accordingly we dismiss this appeal.