Neutral Citation Number: [2011] EWCA Crim 2314
Case No: 201103754 A6 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 13th October 2011

B e f o r e:

LORD JUSTICE STANLEY BURNTON 

MR JUSTICE SPENCER 
 
RECORDER OF MANCHESTER 
HIS HONOUR JUDGE ANDREW GILBART QC 
(Sitting as a judge of the Court of Appeal Criminal Division)
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R E G I N A 

v 

MARK OLDFIELD 
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Mr R Stephenson appeared on behalf of the Applicant 

Mr J Hallam appeared on behalf of the Crown 
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Judgment

1.	LORD JUSTICE STANLEY BURNTON:  Mark Oldfield is a man of 47.  On 6th April 2009 at Leeds Magistrates Court he pleaded guilty to an offence of assault occasioning actual bodily harm and was committed to the Crown Court for sentence under section 3 of the 2000 Act.  On 5th May 2009, at Leeds Crown Court, the judge imposed an extended sentence of eight years under section 227 of the Criminal Justice Act 2003, comprising a custodial sentence of three years and an extension period, that is to say an extended period of licence, of five years.  It was ordered that 30 days on remand count towards sentence.
2.	The application of Mr Oldfield for an extension of time, requiring some two years in which to apply for leave to appeal against sentence, has been referred to the full court by the Registrar, who granted a representation order.  We extend time to the extent we shall mention momentarily and we grant leave to appeal against the sentence for the following reason.  The sentence was an unlawful sentence since the totality of the three year custodial element of the sentence and the five year extension period exceeded the maximum sentence for assault occasioning actual bodily harm.  The statute restricts such sentences to a total period, including the licence period, which does not exceed the maximum for the offence.  Therefore the maximum sentence that the judge could have imposed was one of three years, if he considered three years was the appropriate custodial element, plus only two years as a period of licence.  We therefore quash the sentence that was imposed.  
3.	The question has been raised as to whether in any event the custodial period was excessive, and perhaps even the licence period was excessive, on the facts of the case.  Given the very considerable extension of time that is required to challenge those substantive aspects of the sentence, and the fact that no good reason has been given for an extension in relation to those matters, we refuse leave insofar as those matters are concerned.  We would add this.  The facts of the matter did amply justify the custodial sentence imposed by the judge.  
4.	The complainant, Martin Trigg, was the applicant's next door neighbour.  In April 2009 the applicant knocked on his door.  When Trigg opened the door the applicant said "Do you think I'm a div?".  Trigg did not know what he was talking about.  The applicant entered the hallway, punched Trigg to the head and kicked his knees to knock him over.  As Trigg backed away into the kitchen the applicant followed, punching and kicking Trigg.  Trigg banged his head on the kitchen sink as he fell.  Trigg went onto the floor, where the applicant kicked him to the head and body with both feet, presumably shod.  When Trigg managed to get to his feet the applicant picked up a pizza cutter, held it to Trigg's neck and repeatedly called him a "div".  Trigg called out to a woman in his flat.  When the applicant looked round Trigg managed to disarm him.  The applicant then left, shouting "Don't call me a div again, I'll come back and kill you".  
5.	Trigg's top lip was bleeding, his nose was bloodied and his head was bruised.  He had a bump on his head from hitting the sink and the sides of his body were sore and aching.  Trigg said that he suffered sleeplessness and stress with his neck and jaw locking up and had been unable to eat well, he managed to take only pain killers.  
6.	The applicant, now appellant, has major previous convictions including manslaughter.  It was not surprising therefore that the judge found him dangerous having regard to the facts of the case and his antecedents and the custodial sentence of three years was amply justified.  We could in any event have seen no basis to reduce it.  The licence period of two years equally was appropriate in the circumstances of the case.