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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 >> Shannon, R. v [2008] EWCA Crim 2131 (10 September 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2131.html Cite as: [2008] EWCA Crim 2131, [2009] 1 Cr App Rep (S) 95, [2009] 1 Cr App R (S) 95

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		10 September 2008

1. MR JUSTICE FLAUX: On 18th June 2008 at the Crown Court in Birmingham the appellant, who is aged 25, pleaded guilty to an offence of inflicting grievous bodily harm. On 15th July 2008 he was sentenced by Mr Recorder Berlin to 12 months' imprisonment. He appeals against sentence with the leave of the single judge.
2. The facts of the matter can be stated briefly. On the evening of 14th December 2007 the complainant, Mr Kirby, was out socialising with friends in Birmingham City Centre after work. By 1.30 am he was in the Walkabout Bar in Broad Street. He had been drinking but he did not consider himself drunk. The appellant and three other men were also there and were mimicking the complainant for no good reason other than that they were drunk and aggressive. One of the witnesses said that she thought that an attack was imminent.
3. As the complainant was moving from the dance floor to an elevated bar area the appellant punched him hard on the left-hand side of the jaw. The attack was unprovoked and mindless. The complainant felt pain and discomfort in his jaw and teeth and was bleeding profusely. The doorman in the bar apprehended the appellant and the complainant identified him. The complainant attended hospital the following day. He had a broken jaw and a cracked tooth. He underwent surgery to have plates inserted in his jaw. His lower left wisdom tooth was removed. At the time the appellant was sentenced the numbness to the complainant's jaw had only recently subsided.
4. The appellant was of previous good character and had been in regular employment for some 10 years. He pleaded guilty to inflicting grievous bodily harm at the earliest opportunity. The learned recorder took those matters into account in sentencing him, giving him full credit for the early plea. Nonetheless he had behaved in a drunken and aggressive manner and although the attack was out of character the learned recorder considered that notwithstanding all the mitigation, the pre-sentence report and references for him, the public interest demanded immediate custody.
5. In arriving at the sentence of 12 months, which equated to 18 months after a full trial, the learned recorder referred to R v Clare [2002] 2 Cr.App.R (S) 97, a not dissimilar but slightly more serious case. There a sentence of 30 months was reduced on appeal to 18 months. The learned recorder indicated that he had in mind the same sentence but had reduced it to 12 months to take account of all he had heard and read about the appellant. He also purported to take into account the definitive guideline from the Sentencing Guidelines Council on assault and other offences against the person, specifically the guideline in relation to inflicting grievous bodily harm to which he was referred by counsel for the appellant, Mr Pole (who also appears before us today). The learned Recorder evidently took the view that this case was sufficiently serious to fall into the category of an assault where a particularly grave injury results for which the starting point is 18 months' imprisonment.
6. In his submissions before us Mr Pole essentially takes two points. First, he submits that in view of the previous good character of the appellant and in effect the fact that this was an isolated incident out of character the learned Recorder erred in imposing immediate custody and should instead have imposed a high end community punishment or a suspended sentence. We do not agree. Like the single judge we consider that the sentence of immediate custody was appropriate.
7. Next, Mr Pole submits that a sentence of 12 months' imprisonment was manifestly excessive because it failed to take proper account of the definitive guideline and the mitigating factors. Mr Pole submits this was not a "particularly grave injury". He relies on the recent decision of this court in R v Olawo [2008] EWCA Crim 528 in support of the proposition that particularly grave injury means grave or serious by the standards of offences of grievous bodily harm generally. In those circumstances he submits this case falls into the lowest category of "other unpremeditated assault where no weapon was used" for which the starting point is 24 weeks' custody.
8. We accept that by the standards of offences of grievous bodily harm generally the injury caused in this case was not particularly grave, but we do not accept that it follows that the case falls into the lowest category in the guidelines. It seems to us that this was a case where there was an element of premeditation, as demonstrated by the mimicking that had taken place and the fact that one of the witnesses considered that there was going to be an attack. Accordingly this case falls into that category in the guideline which is "premeditated assault where no weapon has been used" for which the starting point is 36 weeks' custody and the sentencing range is 24 weeks to 18 months' custody.
9. On the basis that this case falls within that category it is clear that the learned Recorder has imposed a sentence which is equivalent to a sentence after trial which is at the very top end of the range for that category, namely a sentence which is equivalent to 18 months after a trial. Notwithstanding that this was a serious, unprovoked attack on a stranger by this appellant who was in a drunken and aggressive state, it seems to us that a sentence which equates to the very highest end of the sentencing range is indeed excessive in this case. It seems to us that the appropriate starting point had this been a full trial would have been a sentence of around 12 months' imprisonment. Given that this appellant pleaded guilty at the earliest opportunity it seems to us that the appropriate sentence is one of eight months' imprisonment and to that extent this appeal is allowed.