No: 200801293 A4 
Neutral Citation Number: [2008] EWCA Crim 1194

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 14th May 2008

B e f o r e:

LORD JUSTICE DYSON 

MR JUSTICE OPENSHAW 
 
HIS HONOUR JUDGE GORDON
Sitting as a Judge of the Court of Appeal Criminal Division 
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R E G I N A 

v 

ADAM STUART CROSS
 
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Mr C Ward‑Jackson appeared on behalf of the Appellant
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J U D G M E N T
1.	JUDGE GORDON:  On 31st January of this year at the Crown Court at Salisbury, after a trial before His Honour Judge Cutler, the appellant was convicted of causing grievous bodily harm with intent.  On 22nd February he was sentenced to life imprisonment with a minimum term of 6 years, less the 23 days that he had spent on remand.  He appeals against both the sentence of life imprisonment and the minimum term with leave of the single judge. 
2.	The facts were these.  On 29th July 2007 the victim, a Mr Starzacher, aged 34, was in the centre of Salisbury with a group of friends.  They had been drinking.  They went to a fast food outlet and at about 12.55 in the morning they came across the appellant who was slightly known to some members of the victim's group.  The appellant was obviously drunk and started to abuse the victim.  Everyone went outside where the appellant attacked the victim, trying to strike him with his fists.  Someone else joined in and then the appellant struck a blow to the victim's head which caused him to fall to the ground.  The appellant thereupon turned his attention briefly to another member of the group but then, as Mr Starzacher was trying to get to his feet, he kicked him on the left side of the head.
3.	Others who had tried to prevent the attack tried to render first aid to the unconscious Mr Starzacher.  The whole incident had been caught on closed circuit television and the operator of it immediately called the police.  The appellant was still at the scene when the police arrived and he was arrested.  He immediately admitted assaulting the victim, expressing remorse and stating that he had not intended serious harm.  In interview he said that he had been drinking all day, had no recollection of the incident but accepted of course what was shown on the closed circuit television.
4.	The victim was taken to hospital where he was found to have a blood clot on his brain which was removed by surgery.  Although he regained consciousness in hospital, he then relapsed into a coma and he remains in a vegetative state which is likely to be permanent.
5.	The sole issue at the trial was one of intent.  The appellant was 28 years old.  He had a number of previous convictions, in the main for offences of dishonesty but there was also a common assault in 1995.  Most notably, for an offence of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861, in 1996 when he was 17 years old he received a sentence of 15 months in a young offender institution.  That involved assaulting a policeman by kicking him in the head, breaking his nose and damaging some teeth.  He also had two more recent convictions for common assault, one for obstructing an officer, another for being drunk and disorderly, and one for criminal damage.
6.	The learned judge in sentencing set out the conduct perpetrated by the appellant, culminating in what he rightly described as a vicious, deliberate and appalling kick which had ruined the victim's life.  The only matter of mitigation was that it was not a planned episode. 
7.	The grounds of appeal can be summarised in this way: firstly, the judge did not warn counsel that he was contemplating a life sentence; secondly, a life sentence was wrong in principle; and thirdly, the minimum term was manifestly excessive.  We turn to each.
8.	It is clear from the exchange between counsel and the judge immediately after sentence had been passed that Mr Ward‑Jackson, who appeared below and appears today for the appellant, was taken by surprise by the discretionary life sentence as opposed to the only alternative, a sentence of imprisonment for public protection.  Bearing in mind that he had accepted that the presumption of dangerousness applied, those were the only two types of sentence open to the judge.  Perhaps he might therefore have contemplated the possibility of such a sentence but, be that as it may, it is in our view desirable, unless there are particular reasons for not doing so, for a judge contemplating a discretionary life sentence to alert counsel to the fact that it is at least a sentencing option that he is considering.  That will give counsel the opportunity, in particular, to raise any matters of law concerning the approach to such a sentence.  That said, the lack of a warning to counsel could not in our view of itself be a reason for allowing an appeal.  It may lead to the existence of other grounds, as is suggested here and to which we now turn.
9.	The second ground is that life imprisonment was wrong in principle.  There have been a number of cases starting with R v Lang [2006] 2 Cr.App.R(S) 3 concerning the interpretation of section 225(2)(b) and in particular the words "is such as to justify the imposition of a sentence of imprisonment for life".  It is, however, clear that the requirement that the offence itself should be serious enough, taken with any associated offences, to justify a sentence of life imprisonment has not been in any way watered down by the 2003 Act regime.  
10.	Mr Ward‑Jackson in his submissions put forward two principal features of the offence itself which he submits means that a discretionary life sentence was not appropriate.  It was, he says, a spontaneous drunken attack and not sustained.  In our view, that is putting it a little too high.  There was the earlier loutish behaviour and the punch which sent Mr Starzacher to the ground.  That said, we accept that there was no pre‑planning.  Drunkenness does not assist the appellant.
11.	Secondly, Mr Ward‑Jackson submits that the injuries giving rise to the offence were the product of a single kick.  That we accept.  This is not a case, as many are, where kicking and/or stamping, once embarked upon, is repeated and the attack is sustained.  We also bear in mind that the appellant at that time was acting alone.  In our view, those factors, particularly the fact that there was a single kick, mean that the offence does not come within the small category of those offences contrary to section 18 where a life sentence is appropriate.
12.	We have considered with care whether the effect upon Mr Starzacher was in itself sufficient to merit the imposition of a life sentence.  There can be no doubt that in practical, as opposed to legal, terms his life was really ended as a result of the appellant's action committed, as the jury found, with an intent sufficient to amount to the crime of murder had Mr Starzacher actually died.  Although there may in those circumstances be an argument that the sentence should bear some relation to that if the appellant had faced a sentence for murder, we bear in mind firstly that there is no authority of which we are aware to support that, at least in relation to an offence where the intent was less than the intent to kill, and secondly the new Definitive Guideline does not provide support for such an argument.  In all the circumstances, we have come to the conclusion that the sentence of life imprisonment was wrong in principle.  The appropriate sentence, therefore, is one of imprisonment for public protection.
13.	As to the minimum term, it is submitted that a starting point of 12 years is manifestly excessive, bearing in mind the Sentencing Guidelines Council's Definitive Guideline on assault and other offences.  It is right to point out that the guideline relates to offences where the sentence was passed on or after 3rd March this year.  The sentence here was passed on 22nd February.  Further, in the light of the date of the forward by the Lord Chief Justice it is highly unlikely that the learned judge would have had it available to him at all.  It does, that said, provide a sentencing range for offences contrary to section 18 where the victim suffered life threatening or particularly grave injuries where the offence was not premeditated of 7 to 10 years.
14.	We have considered that guideline.  In our view, the minimum term of 6 years, taking a starting point of 12 years, was for this offence outside the admissible range and indeed was so even before the Definitive Guideline came into effect.  The appropriate minimum term, in our judgment, is one of 5 years.  Accordingly, the sentence of life imprisonment with a minimum term of 6 years is quashed.  In its place we substitute a sentence of imprisonment for public protection with a minimum term of 5 years.  The 23 days on remand and the period served thereafter should count towards that sentence.