Neutral Citation Number: [2009] EWCA Crim 1729
Case No. 2009/02875/A7

IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Thursday  23  July  2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  BUTTERFIELD

and

MR  JUSTICE  FLAUX

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ATTORNEY GENERAL'S REFERENCE No. 50 of 2009

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988
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R E G I N A

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JONATHAN  HASLAM
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Mr L Mably appeared on behalf of the Attorney General

Mr D Hislop appeared on behalf of the Offender
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J U D G M E N T

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient.  We grant leave.

2.  The offender is Jonathan Haslam.  He is 40 years old, having been born in March 1969.  He is a man of effective good character.  There were powerful supporting references before the judge.

3.  On 20 March 2009, in the Crown Court at Oxford, the offender pleaded guilty at a plea and case management hearing to one offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861.  On 5 May 2009, he was sentenced by His Honour Judge Hall to twelve months' imprisonment suspended for two years.  Ancillary orders were also made: a requirement to carry out 200 hours of unpaid work; and a curfew between 9pm and 6am.

4.  The offence arose out of a violent incident which was recorded on CCTV.  Although there is no sound to the recording, we have been able to see the entire incident; we have looked at it twice, and we have looked at it in slow motion.  It is right to say at the outset that, notwithstanding the very serious injuries sustained by the victim, Scott Swandle, it is plain that the offender neither sought nor provoked any violence.  He was having a quiet drink in a public house with his friends. 

5.  At about 8pm on Sunday 26 October 2008, at the end of a "lazy weekend", the offender and his girlfriend went to a public house in Abingdon for a quiet drink together.  After purchasing their drinks they went out into the beer garden and sat at a table.  They chatted to a member of staff and to another woman.  They were all sober and behaving quietly.  The group was approached by 20 year old Scott Swandle.  He had been at the public house for a number of hours and was plainly very drunk and loud and was obviously using unpleasant language.  He swayed towards the table where the group of people were sitting.  He tried to engage the offender and his girlfriend in conversation, although most of what he said was incoherent.  He would not leave them alone.  He was not aggressive at the outset, but he was argumentative and making a nuisance of himself.  Eventually, he moved away, but then repented of his departure and returned.  More words were exchanged.  This time the offender told him to "Fuck off".

6.  Swandle raised his arm and pointed at, or possibly touched the offender while he was still sitting at the table.  With that the offender jumped to his feet and punched Swandle in the body.  Swandle stumbled backwards and fell over a table.  He ended up on his back on the ground.  That fall, which we have seen, was severe.  It may well have caused the very serious injury which Swandle suffered.  

7.  If the incident had stopped there, we doubt whether the offender would have been prosecuted for anything.  He simply disposed of someone who had been extremely provocative and who appeared to be acting in a violent way, trying to touch him when he had no wish to be touched, after some unpleasant language had been used.  It is what happened thereafter that represents the serious element of the offence.  In his opening, counsel for the Crown put it this way:

		"The offender pushed Swandle very hard over a nearby table.  Swandle went to the ground.  The offender goes to him and strikes a number of blows from what can be seen in the DVD using his fist.  He was not punched to the ground, he was not pinned to the floor.  The offender simply went for him with his fists and then, as Swandle lay there and the offender was punching him, the offender's girlfriend intervened and pulled him away."

8.  Swandle was very seriously injured.  He was unconscious.  Blood ran from his ear and his nose.  His face was swollen.  The offender's girlfriend dialled 999.  An ambulance arrived.  Swandle was taken to hospital.  A CT scan revealed that he had suffered a basal skull fracture, with extensive bleeding inside the skull, both within and outside the brain.  Swandle was detained in hospital for nine days.  On his discharge he was prescribed medication for pain relief.  The hearing in his left ear was affected.  A consultation revealed that a bone in the ear had been dislodged.  In due course (and the operation may now have taken place) it was intended that Swandle should undergo an operation to remove the bone which was interfering with his hearing.  We do not minimise the consequences to Swandle.  They were serious.

9.  The day after the incident police officers attended at the offender's home address.  He was arrested and interviewed under caution.  He admitted that he had been involved in the incident.  There was some exaggeration of the extent of Swandle's behaviour, but the offender admitted that he had lost his temper and that the attack had begun as a result of him losing his temper.

10.  A written basis of plea was submitted on behalf of the offender which, with one exception, was accepted by the prosecution.  It reads as follows:

		"1.  That immediately prior to the assault in issue the complainant approached the defendant, the defendant's girlfriend and her friend.

		2.  The complainant was drunk and was making a nuisance of himself....

		3.  The complainant called the defendant's girlfriend and her friend 'slags' and 'cunts'."

That last point is not accepted by the prosecution.  Although it was not accepted, there would have had to have been positive evidence to demonstrate that this aspect of the offender's position was to be rejected.

		"4.  The defendant said to the complainant, 'Do you mind going away, this is a private conversation'.

		5.  The complainant reacted aggressively, came up to the defendant and said, 'Who the fuck are you?'

		6.  The defendant believed he was going to be attacked and struck out at the complainant in self-defence.

		7.  By his plea the defendant accepts that in the heat of the moment he used excessive force."

11.  The case presented to Judge Hall involved the prosecution accepting that the person who started all the trouble that evening was the complainant; that the offender had sought to defuse the situation as it developed; that the complainant reacted aggressively to those efforts; and that the offender acted in what he believed to be self-defence, although he went too far.  It is obvious, too, from the summary of the facts and the basis of plea that was accepted, that the behaviour of the complainant had involved serious provocation.

12.  There was a pre-sentence report before the judge.  The author of the report concluded that the offender presented a low risk of re-offending.  He did not pose a significant risk of serious harm to members of the public.   That was all entirely in keeping with the evidence based on the character references which were before the judge.

13.  During the course of the hearing Judge Hall was anxious to discover whether there was any indication about how Swandle had been injured and whether his injuries had occurred as a result of going backwards over the table.  Counsel for the Crown said that it was not clear whether the basal skull fracture was the result of the fists used by the offender or was the result of Swandle going over the table and striking his head on the ground.  Judge Hall considered that the basal skull fracture would have been an unusual injury from a fist assault in the circumstances in which the fists were used.

14.  When he came to pass sentence, Judge Hall was concerned about the serious injury that had been sustained by Swandle, and was concerned about the offence to which the offender had pleaded guilty.  He examined the question of how the major injury had been caused.  He said that it was not at all clear how it had happened.  He was "always reluctant" to be critical of people who had been badly injured in an unlawful attack, but he was plainly anxious that the situation should be fully ventilated because a viewing of the video clearly showed why the assault had taken place.  The complainant was "drunk, he was aggressive and he was abusive".  As the judge put it, 

		"what followed should not have happened but .... anyone who has seen the video would understand that it did happen and that a drunk man was attacked unlawfully because of the way he had been behaving".  

The judge acknowledged that the sentence that he intended to pass would be in one sense a lenient sentence, but he took everything into account and concluded that the offender had acted out of character.  He asked himself the question: did the offence merit imprisonment?  The answer was: yes, because of the severity of the injuries.  However, the second question was: was there any point in sending the offender to prison?  He concluded that there was not.  Accordingly, a suspended sentence was imposed and the ancillary orders were made.  
15.  We have been told today that 67.5 hours of the Community Service Order have already been carried out.  In addition, the offender has been under the curfew arrangements ordered by Judge Hall.

6.  On behalf of the Attorney General our attention has been drawn to the aggravating features of the offence: the very serious injuries suffered by Swandle and their effect on his health and general approach to life; when the offender used his fists, the victim was lying defenceless on the floor; and after the attack, the offender left the scene without offering any assistance to the unconscious victim.  Our attention has also been drawn to the Sentencing Guidelines Council's Definitive Guideline on Assault and Other Offences against the Person, which it is said suggests that for injuries such as occurred in this case a sentencing starting point in the range of five years.

7.  We must be careful about guidelines.  Of course the court must have regard to them; that is a statutory requirement.  The court must also have regard not only to the guideline as set out in the figures which the tables produce, but also to some of the text.  Our attention has been drawn to the difficult issue which arises in this case between the culpability of the offender and the harm which is consequent on the violence.  The guideline reads as follows:

		"Culpability and harm

		7.  The culpability of the offender is the initial factor in determining the seriousness of an offence.  All offences against the person have the potential to contain an imbalance between culpability and harm.  This can produce situations where low culpability produces a high level of harm, high culpability produces no harm at all or where the two are more evenly balanced since the same act can, in different circumstances, produce varied levels of harm.  Where this imbalance occurs, the harm has to be judged in the light of the culpability of the offender."  (Our emphasis)

8.  It seems to us that Judge Hall, without referring directly to that text, must have been addressing these difficult issues of the balance between the relatively low level of culpability involved here, as against the high consequent harm.  Indeed, in reality, as an offence of section 18 grievous bodily harm with intent, it is accepted by the Crown, and rightly so, that this is an offence at the lower end of the scale.  We would go further.  We consider that it is at the lowest end of the scale for such an offence.  Account must be taken of the offender's admitted intention, and the circumstances in which this violent incident blew up.

9.  Our conclusion can be expressed briefly.  Like Judge Hall, we consider that the sentence that he passed was a lenient sentence.  The question which then arises is: was it unduly lenient?  It is arguable that it was.  However, when we stand back and look at the matter in the round, recognising that in a case like this the impression formed by an experienced judge who was able to witness the incident for himself and form his own view of the precise extent of the offender's culpability, we are not satisfied that this is an unduly lenient sentence for the purposes of section 36 of the 1988 Act.  In those circumstances, although the sentence was a lenient one, we do not consider that it was unduly lenient.  In those circumstances we do not interfere with it.

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