Neutral Citation Number: [2011] EWCA Crim 3129
Case No: 201105799 A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Friday, 16 December 2011

B e f o r e:

LORD JUSTICE PITCHFORD 

MR JUSTICE ROYCE 
 
MRS JUSTICE SHARP DBE 
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R E G I N A 

v 

JEROME LAWRENCE
 
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Mr C Royle appeared on behalf of the Appellant 
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Judgment

1.	LORD JUSTICE PITCHFORD:  Following a trial at Wood Green Crown Court before HHJ Carr, the appellant was convicted upon count 2 of an offence of inflicting grievous bodily harm to Mitchell Browning.  On 12 October 2011, the appellant was sentenced to a term of 9 months' imprisonment, a sentence which he now appeals with the leave of the single judge.
2.	The appellant was a man aged 25, of good character and from a hard‑working family background.  There was placed before the judge a clip of documents which comprised certificates of achievement in the appellant's pursuit of his qualification as a plumber, together with testimonials from those who had worked or played sport with him.  He had been a volunteer sports coach.  He had for some years attended as a volunteer the Crib Project in Hackney, whose purpose was to foster self‑improvement for young people.  He had taken a six‑month placement with the firm which employed his father and uncle.  He had been working satisfactorily for an agency since July 2010 for whom he was placed as a plumber's mate.  He was described by his grandmother, family friends and step‑father as a loyal, hard‑working, trustworthy and active young man.  They were shocked to learn of the appellant's offence.
3.	On 21 April 2011, the appellant was selected as a substitute by the Goodwill AFC who were playing football in the Sunday League at Edmonton against Kingfisher AFC.  The appellant was on the touchline with other substitutes when the victim, Mitchell Browning, committed a foul on a Goodwill player.  The Goodwill player immediately got up and remonstrated.  Browning pushed him down.  Members of both teams squared up to one another and the Goodwill substitutes rushed onto the pitch.  The appellant aimed a heavy punch at Browning, which caused him a serious injury to his face.  We cannot improve upon the assessment of the offence committed by this appellant which was made by the judge, from whose sentencing remarks we now quote: 
"This was a Sunday League football match, under the auspices of the Football Association, for which an umpire was provided.  It is the sort of Sunday match tens if not hundreds of thousands of people enjoy up and down the country, and which I am afraid anybody involved in sport knows has been blighted over many years now by the behaviour of those on the pitch.  This is a classic example of that.  Mr Browning, who played for the opposition team, may have been guilty of a foul.  That is why there is a referee.  That referee gave evidence in this trial and struck me as an impressive individual, who I have no doubt would have controlled the game properly.  He was not only giving a foul, but proposing to send Mr Browning off.  The person he tackled clearly was not injured, because they got up almost immediately and began remonstrating with Mr Browning, which caused a further confrontation in which that person was pushed over.  Again they were uninjured.  
"The reaction then of both teams was disgraceful.  They confronted each other at the halfway line or thereabouts and those that had been watching the game or substitutes felt the need to come on and engage in that confrontation.  
"You were one of those substitutes.  There was no possible justification for you coming on the pitch at all, but it goes beyond that.  What you actually did was this, as described by all the witnesses so graphically.  You ran at full tilt from the sidelines, launched yourself with such force at Mr Browning you actually took off, and punched him with considerable force to the side of the head.  He wasn't even looking at you at the point you hit him.  He presented no threat to you or anybody else.  It was gratuitous revenge.  
"The force of that blow broke his eye socket and cheek in four places.  He suffered a depressed fracture which required surgery under general anaesthetic to insert a metal plate into his face.  He still has symptoms today.  It was a wholly unprovoked, cowardly attack on a man who presented no threat to you or anybody else.  
"You then contested the matter.  Throughout interview and trial, you denied being the person responsible but you were disbelieved by the jury.  If ever there was a case where credit for plea was so important, this was it.  Had you been able to acknowledge from the beginning [...] that you were involved in a moment of madness which you deeply and fundamentally regretted, it would have given the courts a far greater range of potential sentencing.  You chose not to do that.  You are not punished for exercising your right to trial, but what it meant was you lost the only true mitigation you had above and beyond your good character."
4.	The judge consulted the assault guideline, issued by the Sentencing Council in June 2011.  The guideline for section 20, inflicting grievous bodily harm, appears at page 7 and following.  The judge assessed the appellant's offence as category 2, namely causing greater harm but with lower culpability.  The starting point for such an offence is 18 months' custody with a range of 1 to 3 years' custody, this for a first‑time offender after a trial.  That was, of course, the appellant's situation.
5.	It seems to us that the ongoing effect on the victim was a factor which aggravated the offence.  Mitigating features were that the appellant, who was of good character, delivered a single blow.  
6.	Mr Royle argued before the sentencing judge, and in writing, that the judge should not have proceeded to sentence without a pre‑sentence report.  The single judge rejected that argument, and Mr Royle has sensibly not renewed that ground of his appeal.  Nevertheless, the court is required to reach its own view for the purposes of section 156 of the Criminal Justice Act 2003, so we shall refer briefly to the issue.  By section 156(3) of the 2003 Act, the sentencing court must obtain a pre‑sentence report before reaching any conclusion under section 152(2) that the offence was so serious that neither a fine nor a community sentence could be justified for it; or, under section 153(2), what was the shortest term commensurate with the seriousness of the offence; or, under section 148(1) and (2), whether the offence was serious enough to warrant a community sentence and, if so, what restrictions on liberty were commensurate with the seriousness of the offence.  There is, however, a saving in section 156(4) in that subsection (3) will not apply if the court is of the opinion that it is unnecessary to obtain a pre‑sentence report.  This is a decision which must, of course, be made judicially and for sound reasons, and the reasons for reaching such a conclusion may be very different from one case to the next.  Having concluded that an immediate term of imprisonment was inevitable for the offence, the judge found that it was not necessary to obtain a report and said so in his sentencing remarks.  
7.	Mr Royle submitted to the judge, and has submitted to this court, that to place this offence in category 2 was a misapplication of the guideline.  The injuries suffered by Mr Browning, he submits, were not such that in the context of section 20 grievous bodily harm they were especially serious.  What is usually required for a finding of greater harm is an injury which is serious in the context of the offence, or a particularly vulnerable victim, or a sustained or repeated assault on the same victim.  Had the judge been sentencing for a category 3 offence (that is, lesser harm and lower culpability), the starting point would have been a high‑level community order.  Here, the judge found that the injuries were serious in context, and for that reason custody was bound to follow.  The single judge, when considering the application for leave, agreed.  So does this court, and we so find for the purpose of 157(7)(a) of the 2003 Act.  
8.	It was not necessary in the circumstances to obtain a pre‑sentence report, first because custody was inevitable on the facts of the offence, and secondly because the judge had a good deal of information about the appellant and his background.  We reject the submission that the judge was wrong to categorise this as a category 2 offence.  Assessment of the seriousness of injury in context is an objective decision based upon judicial experience.  It is our view that the judge properly considered the number of fractures, the insertion of a plate and the continuing effects upon the victim, and cannot sensibly be criticised for reaching the conclusion he did.
9.	We turn therefore to the length of the sentence imposed.  Mr Royle attempts to make a comparison with the case of R v Cotterill [2007] 2 Cr App R (S) 64 at page 391, although he concedes it can only be a partial comparison.  There, the appellant, who was on the field of play, had delivered a blow during a scuffle between members of the opposing semi‑professional teams.  His victim's jaw was fractured in two places and two metal plates were inserted.  It will be seen that there is an important distinction between the facts in Cotterill and the facts in the present case.  Here, the appellant was no part of the play; he ran onto the field of play in order to intervene in a dispute which was nothing to do with him.  Furthermore, Cotterill very soon afterwards expressed his remorse by writing both to the victim and to the victim's club.  He pleaded guilty in the magistrates' court to section 20 wounding.  His victim made a complete recovery.  A sentence of 4 months' imprisonment was upheld by the court.  
10.	We agree with the conclusion of Judge Carr.  These two cases are comparable only in superficial respects.  Harm and culpability were more serious here, and critically there was not present the acknowledgement of guilt and the expression of remorse which can be so important in the assessment of culpability in the case of a young man of good character.  We cannot find fault in the judge's approach, nor can we find that the sentence he imposed was excessive.  The appeal must therefore be dismissed.