No. 2009/00785/A2
Neutral Citation Number: [2009] EWCA Crim 1226

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  15  May  2009

B e f o r e:

LORD  JUSTICE  GOLDRING

and

MR  JUSTICE  McCOMBE

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R E G I N A

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KEVIN  DAVID  EDWARD  PARKER
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Miss F Davies appeared on behalf of the Appellant
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J U D G M E N T
Friday  15  May  2009

LORD JUSTICE GOLDRING:  Mr Justice McCombe will give the judgment of the court.

MR JUSTICE McCOMBE:
1.  On 15 January 2009, in the Crown Court at Leeds, before His Honour Judge MacGill, the appellant pleaded guilty to an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861.  On 6 February 2008, he was sentenced to two years' imprisonment, with a direction that ten days spent in custody on remand should count towards sentence.  He now appeals against sentence by leave of the single judge.

2.  The facts of the case were these.  The complainant had been in a domestic relationship with the appellant for about two years.  It had been stormy and marked with some incidents of violence and separation.  They had lived together at an address in Leeds.  On the evening of 1 August 2008 they went out for an evening to a number of public houses and bars, and continued to drink at the homes of friends and relatives after that before arriving home at about 9.30pm.  Once there they continued to drink.  They shared a two litre bottle of cider.

3.  About a week beforehand someone had apparently told the appellant that the complainant had been cheating on him.  She had denied this.  At that stage the appellant had seemed satisfied by the explanation.  
4.  However, at about 1am on 2 August (the early hours of the morning after their drinking spree), the appellant and the complainant were sitting together in the kitchen when the appellant asked her again if the cheating allegation was true.  Again she denied it.  On this occasion he did not seem to be satisfied.  He became more and more angry and the two of them argued for about half an hour.  At the end of the argument the complainant walked away towards the living room.  The appellant grabbed her by the arm.  He swung her round.  He called her a "slag" and punched her in the face.  The blow was of sufficient force to knock her to the ground.  He continued the assault whilst she was on the ground, repeatedly punching her to the face.  She screamed at him to get off her.  She begged him to stop, but he did not.  In her estimation he punched her about ten times in all and continued to shout abuse.  The appellant suddenly desisted.  He pulled out a mobile phone and said to her, "Phone a taxi and fuck off".  She telephoned a relative who lived about a quarter of an hour away.  He agreed to come and collect her.  While she was waiting for him to arrive, the appellant went to a bedroom and started to throw clothing into the sitting room.  He continued to shout abuse and told her to get out of the premises.  He walked back into the kitchen where the complainant was waiting for her relative.  He punched her again, still shouting and alleging the infidelity that had cause the argument in the first place.

5.  The complainant's relative then arrived.  At that stage the appellant offered to take the complainant to hospital, but ran off rather than come face to face with the relative.

6.  The complainant moved away for the night.  Her mother was informed of what had happened.  The following morning the appellant rang the complainant's mother and said, "I've done her this time.  She's a slut".  The evidence was that he laughed as he said this.

7.  The complainant was taken to hospital, where she was treated for two black eyes, some bruising and a graze to the ear.  There was a cut under one eye and bruising to her arms and shoulder.

8.  The appellant was arrested on 3 August 2008.  When interviewed he admitted the violence, but claimed that he had acted in self-defence when the complainant had picked up a knife and lunged at him with it.  He claimed at that stage to have punched her only once in the face.  However, the injuries as shown by the photograph clearly showed that to be untrue.

9.  The appellant was born on 8 December 1984, and is therefore now 24 years of age.  He has five previous convictions for eight offences.  Only two matters in his record need concern us today.  There was an offence of battery committed in 2003, for which he received a Community Punishment Order.  That apparently was an attack on a male victim.  He was also ordered to pay compensation.  More relevantly, there was a caution for battery in 2007 committed on the complainant in the present case.

10.  The pre-sentence report recommended a community order with requirements of attendance on a Domestic Abuse Programme and supervision.  Miss Davies, whose helpful submissions have been of assistance to this court this morning, recognises that that was an unrealistic recommendation in which, in mitigating before the learned judge, she did not persist.  The author of the pre-sentence report assessed the appellant as presenting a medium risk of re-offending, but a raised risk of harm to women with whom he was in a close relationship.  The report noted a tendency to minimise the offending in this case and to blame the victim.  The appellant's offending propensity was said, not surprisingly, to be increased by abuse of alcohol and drugs.

11.  In passing sentence, the judge gave credit for the plea of guilty but said that it would be reduced because of it being entered only on the day of trial.  He noted, however, that the prosecution had up to that stage maintained an allegation that the assault had included an element of kicking.  The judge said that he gave credit to the appellant for that discrepancy on the facts.  The judge referred to the Sentencing Guidelines Council's guideline on sentences for assault and identified the starting points there indicated.  He noted that these were guidelines, but emphasised that this was a "prolonged, nasty and violent assault, fuelled by drunken jealousy".  The judge noted the injuries, which he correctly characterised as "not minor", involving severe bruising to the face, the closure of both eyes, extensive bruising to the ear and forearms, and he further noted that many of the injuries had been inflicted while the victim was on the ground.  The judge concluded his sentencing remarks in the following terms:

		"As to the starting point for these matters, and the Sentencing Guidelines Council, well those are guidelines.  I look, and I hope anybody else that may consider my sentence will look, at these photographs and the description I have just given of this being a prolonged, nasty, violent assault upon this young lady for no reason whatsoever other than your drunken, drugged jealousy.

		When granddad turns up you, perhaps true to your colours, cowardly run off.  And the next day there are conversations, I will not go into the details of that; there may well be some angst between the relative you spoke to at that particular time.

		As I say, against that backdrop I have to decide what is the appropriate sentence.  Yes, you have pleaded guilty, but you get reduced credit for that guilty plea."

12.  On the present appeal Miss Davies argued that the sentence passed went outside the guidelines for the present offence.  She submitted that the case fell between two of the categories appearing on page 17 of the guideline document, namely "Pre-meditated assault resulting in a relatively serious injury", for which the range of 36 weeks to two years' custody is recommended; and "other assault resulting in minor, non-permanent injury", for which the range of a Community Order to 26 weeks' custody is suggested.  In addition, Miss Davies submitted that insufficient credit was given for the appellant's plea, albeit late because of the outstanding kicking allegation with which the Crown in the end did not persist.

13.  We have considered those matters.  We deal first with the question of the plea of guilty.  We consider that the learned judge was right to afford reduced credit for that because right up to the door of the court a trial had been indicated.  Further, in interview the appellant had maintained an allegation of self-defence.  It appears to us that that was probably the issue that was going to trial, although Miss Davies was understandably unable to help us on that point.  It must be added that the offence was clearly aggravated by the sustained and repeated nature of the attack (we note in this respect paragraph 13 of the guideline to which Miss Davies referred), and was aggravated by the appellant's previous record for violence which, although not excessive, in one case involved the same victim.  We have borne in mind in the latter respect the aggravating nature of any record of domestic abuse to which courts are obliged to have regard, pursuant to the guideline document on domestic violence.

14.  This was, in our judgment, a truly bullying and vicious attack on a defenceless victim late at night -- a victim upon whom violence had been perpetrated before by the appellant.  In our judgment the courts must send out a clear message that such behaviour will not be tolerated.  The Sentencing Guidelines Council's guidelines have to take into account the general nature of offending and cannot prescribe the precise offence in each case with all its characteristics.  Many cases such are described on page 17 of the document will involve only one punch, not the ten punches that were involved in this case.  Although not premeditated, the sustained nature of this attack, which resulted in far from minor injuries (the photographs of which this court, like the learned judge, has seen) committed in a domestic context on a vulnerable victim renders the case not much less serious than the truly premeditated offence.  After a trial we consider that this offence could well have warranted a sentence of at least two and a half to three years' imprisonment.  It was clearly among the most serious of section 47 offences.  The judge's discount for the plea was entirely adequate in all the circumstances, particularly having regard to the initial protestations of self-defence.  This sentence was severe, and justifiably so.  For these reasons we dismiss the appeal.