Case No: 201201016 A7
Neutral Citation Number: [2012] EWCA Crim 1292
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
His Honour Judge Moore
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/06/2012
Before :

LORD JUSTICE STANLEY BURNTON
MR JUSTICE HEDLEY
and
THE RECORDER OF PRESTON
(sitting as a Judge of the Criminal Division of the Court of Appeal)
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Between :

	VINCENT OLALEKAN FADAIRO	Appellant	
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	THE QUEEN	Respondent	

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Chester Beyts (instructed by the Registrar of the Court of Appeal Criminal Division) for the Appellant 

Hearing date : 1 June 2012
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Judgment
Lord Justice Stanley Burnton : 
Introduction
1.	On 19 December 2011 in the Crown Court at Woolwich before His Honour Judge Moore the appellant was convicted after trial of wounding with intent, contrary to section 18 of the Offences against the Person Act 1861. On 25 January 2012 before the same judge he was sentenced to 11 years’ detention in a Young Offenders’ Institution.
2.	The appellant appealed against his sentence with leave of the single judge. On 1 June 2012 we heard his appeal and dismissed it, saying that we would give our reasons in writing. We now do so.
The facts
3.	The offence occurred in the early afternoon on 12 May 2011. The complainant, Jordan Springer (17 years old at the time), was in a fast food restaurant with some college friends. Afterwards there was some kind of verbal confrontation between the appellant and the complainant outside the restaurant. The appellant walked off. About five minutes later the appellant returned. He approached the complainant as he and his friends waited for a bus. The appellant forced the complainant up against a fence. There was a struggle and the complainant then felt a blow to his face very close to one of his eyes. He immediately felt blood pour down his face. He raised his hand and received a cut to his palm. The appellant then ran off. 
4.	The appellant was identified by witnesses from a Facebook profile picture and was arrested on 23 June 2011. 
5.	The complainant was treated in hospital for a stab wound just under his left eye. It was three centimetres in length and seven centimetres deep. There was no functional or neurovascular damage and it was washed out and closed with stitches. He also had a bruise to his head and a superficial laceration to his right palm. 
The appellant
6.	The appellant was born on 22 May 1991 and was therefore aged almost 20 at the date of the offence. He had three previous court appearances for four offences between October 2008 and April 2010, which included three robberies. When he committed the index offence, the appellant was on licence following a sentence for one of the robberies, in which the appellant used a gesture indicating he had a knife. The first robbery was committed by the appellant and another, and a knife produced by the other robber. 
The judge’s sentencing remarks
7.	The judge considered the application of the Definitive Guideline on Assault issued by the Sentencing Council. He said:
“The real substance of those guidelines is to try and balance out what could be described as harm and culpability.  Category 1, which refers to greater harm and higher culpability, has a starting point of 12 years in custody, with a range of 9 to 16 years.  Category 2 has lower culpability for serious injury, or lesser harm and higher culpability.  
In my judgment, and I express it in the best way I can, the fact that [the victim’s] eye was not removed or permanently damaged, as opposed to the actual loss of an eye, cannot logically diminish a sentence or increase a sentence’s starting point by six years.  What is important here is that I balance these two criteria in a way that reflects the gravamen of the allegation.  In my judgment, there was no doubt at all that you endeavoured to stab him in the eye, in the way that you conducted yourself at that time.  In any event, even if you had not, you drove a knife into his face.
	Therefore, looking at both categories 1 and 2 and trying to assess the appropriate starting point, in my judgment the proper starting point is that of ten years.”
8.	The judge then considered the mitigating and aggravating factors affecting sentence:
“In mitigation, I take the following matters into account: the fact that you were 19 at the time of offence, not a very young man but sufficiently young for it to be a mitigating element.  However, there are outweighing aggravating elements.
Firstly, you used a knife and/or a sharp implement.  I come to the conclusion it is a knife because evidence was given by a witness to see you putting something into your waistband.
Secondly, it undoubtedly was a premeditated attack.  The fight had started; you went away and returned.  In my judgment, that demonstrates quite clearly you were determined to attack this young man in the way that you did.
Thirdly, that this offence was committed whilst on licence, that licence for offences of robbery and where there had been a suggestion, perhaps, of a weapon.
Fourthly, that you have previous convictions for, when I say the use of a knife, to the extent that a knife was produced for the offence of 2 October 2008, and in addition the threat of a weapon on the conviction of 19 January 2010.  That is the rationale for my sentence.”
9.	The judge then imposed the sentence of 11 years’ detention in a YOI to which we have referred.
The grounds of appeal
10.	The essential ground of appeal is that the judge failed to follow the Definitive Guideline, and in consequence the sentence imposed was manifestly excessive. The injury caused to the victim was not “greater harm” within the context of the section 18 offence of causing grievous bodily harm with intent or of wounding with intent. It followed that this was at most a category 2 case, one of lesser harm and higher culpability, with a starting point of 6 years’ custody and a range of 5 to 9 years’ custody. The judge should have used a staring point of 6 years raised by aggravating features to 7 or 8 years.
11.	We had before us written submissions of Catherine Farrelly on behalf of the prosecution. She drew attention to the qualification in the definitions of Category 1 and Category 2 arising from the word “normally”. 
The leave given by the single judge
12.	Granting leave to appeal, the single judge remarked that “the meaning of the requirement ‘serious harm must normally be present’ is not pellucid”, and stated:
“I am persuaded that this case does raise a question of principle which may affect sentence: namely, the precise meaning/import of the phrase/criterion “Greater harm (serious harm must normally be present)” in Category 1 and Category 2 of the Assault Definitive Guidelines (p. 4) in circumstances where the infliction of really grave injury was the intention (reckless or otherwise) but not the result.”
13.	It was because the single judge regarded this appeal as raising a question of principle that we decided to hand down our judgment in writing.
Discussion
14.	The Guideline dictates that the first step in the making of the sentencing decision is to determine the offence category. Category 1 is defined as “Greater harm (serious injury must normally be present) and higher culpability”; Category 2 is defined as “Greater harm (serious injury must normally be present) and lower culpability; or lesser harm and higher culpability. 
15.	The greater harm that is referred to here is to be viewed in the context of the offence. It follows that really serious injury, which is what every offence of causing grievous bodily harm involves by definition, may nonetheless be “lesser harm” for the purposes of this Guideline. We therefore accept that in the present case, greater harm in this sense was not caused. However, both in the definition of the Categories, and in the list of “Factors indicating greater harm”, the requirement of greater harm is qualified by the word “normally”. The effect of this qualification is not expressly stated in the Guideline itself.
16.	However, the Guideline must be read as a whole. Although under Step One it is stated that the listed factors indicating greater harm and those indicating higher culpability “should determine the category”, the Guideline at Step Two states:
“The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.”
17.	The italics are ours. We consider that it is because of this possibility that the qualification “normally” is used at Step One. In deciding whether it is appropriate to move outside the identified category range, the judge will take into account both the factors listed in Step One and those listed in Step Two, and any other relevant factors, bearing in mind that the latter list is not exhaustive. 
18.	It follows that the question on this appeal is whether the judge was right, or was entitled, to move outside the category range that would otherwise by identified by Category Two, i.e., a case of admittedly higher culpability and lesser harm. We consider that the judge was both entitled and right to do so.
19.	In the first place, this was a knife crime. Parliament dictated in enacting section 18 that assaults with a knife or other bladed weapons (the usual cause of a wound) should be regarded and punished more seriously than assaults without a weapon or with other kinds of weapon. We say this because whereas in a case not involving wounding section 18 requires both the intent to cause grievous bodily harm and that such harm be caused, in a wounding case it is sufficient that the defendant intended to cause such harm, even if in fact he only inflicted a wound which did not amount to grievous bodily harm. In this connection it is perhaps curious that the Guideline includes as an aggravating factor at Step One “Use of weapon or weapon equivalent (for example, shod foot, headbutting, use of acid, use of animal)”. In a wounding case the use of a weapon will normally be intrinsic to the offence, i.e., it will necessarily have involved the use of a knife or the like to inflict the wound. Moreover, the weapons given as examples are appropriate to a non-wounding case: knives and the like, the most obvious weapons involved in a wounding offence, are not mentioned. 
20.	Secondly, the judge was entitled to take into account the incidence of knife crime and the need for deterrent sentences. He said, “Knife crime, certainly in the Woolwich area, is a real and increasing problem,” and “Knife crime is a plague and curse and only severe sentences are appropriate”. 
21.	Thirdly, the culpability of the appellant was very great, even in the context of the offence. He had previous convictions for robbery, at least one of which involved a knife. The index offence was committed on licence from a sentence for one of the robberies. It was premeditated. The judge, having presided in the trial, found that the appellant had intended to stab the victim in the eye. In other words, it was an attempt to blind the victim in one eye by stabbing. It was good fortune indeed that he missed the eye, but not by much.  The only mitigation available to the appellant was his age.
22.	It was for the above reasons that we concluded that the judge was entitled to determine a starting point that was outside Category Two. The sentence he imposed was permitted by the Guideline. It was neither wrong in principle nor excessive. Accordingly, we dismissed the appeal.