The defendant in the first case tried to break into his general practitioner’s home, punching him several times before forcing him to the ground where he continued to punch and strangle him causing physical injuries and significant psychological effects. He was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. When sentencing the defendant in 2019 the judge applied the Sentencing Council Guideline in respect of causing grievous bodily harm with intent to do grievous bodily harm (2011) which listed “sustained or repeated assault on the same victim” as one of the factors indicating greater harm. Taking the physical injuries and psychological effects into account he found the latter to be high, the assault sustained at step 1 and placed the offending in category 1. He found the defendant to be dangerous and imposed an extended sentence of 14 years 11 weeks’ imprisonment. The defendant in the second case was a former soldier in a relationship with a woman engaged in family court proceedings against her former partner against whom she made serious allegations. He installed a tracking device in the former partner’s car and lay in wait outside his house one evening knifing him 5 to 15 times before being stopped. He was convicted of causing grievous bodily harm with intent contrary to section 18. When sentencing the defendant in 2017 the judge applied the 2011 guideline. He placed the offence in category 1 on the basis that it was a sustained and repeated assault but did not find him to be a dangerous offender. He imposed an uplift from the guideline starting point to 14 years’ custody reducing the sentence to 12½ years’ imprisonment to reflect mitigation. In 2021 the Sentencing Council replaced the guideline with Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do grievous bodily harm˗section 18 Offences against the Person Act 1861 which listed “prolonged/persistent assault” as a step 1 high culpability factor. The Criminal Cases Review Commission referred the defendants’ cases to the full court on the ground that there was a possibility that in light of the clarification given in the authorities and the 2021 guideline as to what was meant by the greater harm factors in the 2011 guideline, the assaults should have been dealt with as category 2 offences. The defendants contended that in 2015 the Sentencing Council’s report and findings showed further consideration was needed as to what constituted a “sustained or repeated assault”.
On the appeals—
Held, appeals dismissed. Sustained or repeated assault might be distinct concepts but both required a degree of persistent repetition and should be read in light of the major difference in starting point between the two categories of offences. To meet the test of proportionality the facts warranting the higher sentence should reflect the difference in the guidelines. Neither the Sentencing Council Guideline Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do grievous bodily harm˗section 18 Offences against the Person Act 1861 (2021) nor any decision of the Court of Appeal (Criminal Division) specified the precise number of distinct blows or duration of an attack which might be required before an assault could be regarded as sustained or repeated because it was a matter of judgment for the sentencer. There was no broad proposition requiring or permitting a sentencer when applying a guideline to consider other materials published by the Sentencing Council or the suggested analogy with parliamentary materials, because a guideline was not a statute and not to be applied by reference to the canons of statutory interpretation. Sentencers were required by statute to follow any relevant sentencing guidelines relevant to the offender’s case. A research paper, consultation or draft guidance is not a relevant guideline. Where there was a relevant offence-specific guideline which described the categories of case the general statutory duty of the sentencer included a duty to decide which of the categories most resembled the offender’s case to identify the sentencing starting point in the offence range. Performance of those statutory duties required the sentencer to follow any relevant guidance given by the court but not to review external materials to ascertain the meaning of ordinary English words. Transparency in sentencing was assisted by the guidelines being publicly available in digital form on the Sentencing Council’s website. An impugned sentence had to be considered on its merits not on the basis of material suggesting difficulties might have been encountered in other cases on different facts (paras 18, 26–32).
Lyndon Harris (assigned by the Registrar of Criminal Appeals) for the defendant.
John Price KC (instructed by Crown Prosecution Service, Special Crime Division, Appeals Unit) for the Crown.