Case No. 2007/04217/A6
Neutral Citation Number: [2007] EWCA Crim 2624
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday  17  October  2007

B e f o r e:

MR  JUSTICE  BUTTERFIELD

and

MRS  JUSTICE  DOBBS  DBE

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R E G I N A

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DEAN  CHARLES  LYNCH
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Mr N R Stelling appeared on behalf of the Appellant

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Judgment

MR JUSTICE BUTTERFIELD:
1.  On 6 August 2007, in the Crown Court at Birmingham, the appellant Dean Lynch pleaded guilty to common assault and was sentenced to a conditional discharge for two years.  He now appeals against that sentence by leave of the single judge. 

2.  The facts fall within a short compass, but they raise a point of sentencing principle.  The appellant is 39 years of age.  He has no less than 29 previous convictions.  Many of those convictions are for offences of violence, including five for robbery, three for unlawfully inflicting grievous bodily harm, one for wounding with intent, three for assault occasioning actual bodily harm and two for common assault.  Clearly the appellant is a very violent man.

3.  On the morning of 12 February 2007, the victim of the common assault, Mr Winn, saw what appeared to him to be an assault being committed by the appellant against Miss Leach, the appellant's then partner, in the street outside Mr Winn's home.  Being of a public-spirited disposition, and having seen what he thought was an act of violence, Mr Winn went to assist the lady.  He asked the appellant what he was doing.  He was told that there was an argument about money.  The appellant then swung a punch at Mr Winn and grabbed hold of him.  The two men fell to the ground, where they scuffled together for about 30 seconds before they were separated by others.  Miss Leach had by then made good her escape.  

4.  The police were called.  The appellant was arrested, but he could remember little about the incident and was plainly drunk.  

5.  The appellant was charged with two offences of assault occasioning actual bodily harm, one on Miss Leach and the other on Mr Winn.  The appellant was arraigned on 8 May 2007 and pleaded not guilty.  The case was adjourned for trial.  The appellant was remanded in custody.  The trial was due to take place on 20 June 2007, but on that occasion Miss Leach failed to attend the hearing.  The trial was adjourned to a later date.  It was re-listed on 6 August 2007.  Again Miss Leach did not attend.  At this point the prosecution indicated that they would accept a plea to common assault on Mr Winn.  He had sustained only bruising and a minor abrasion to his head.  The appellant duly pleaded guilty to the added count of common assault.  The plea was accepted and the court moved to sentence.

6.  By the date of sentence the appellant had been on remand in custody for five months and 22 days -- the equivalent of a substantive sentence of nearly twelve months' imprisonment.  The maximum sentence for an offence of common assault is six months' imprisonment.  In the course of the sentencing hearing the judge expressed the view that the court needed to retain some control over the appellant.  Despite the efforts of defending counsel, the judge took the view that the appropriate course was the imposition of the Conditional discharge.  When passing sentence he went on to say that the appellant should view himself as effectively being under a suspended sentence of imprisonment if he was to commit an offence of violence during the period of the conditional discharge.

7.  The short point made by Mr Stelling on the appellant's behalf is that the consequence of the judge's order was to render the appellant liable, if he were to re-offend, for further punishment in respect of the offence of common assault when he had already served nearly twice the maximum permitted in law for that offence.

8.  We entirely sympathise with the proper and understandable desire of the court to keep some form of control over the appellant if possible, particularly as the likelihood of his committing a further offence of violence was, as it seems to us, high.  That said, we consider that it was inappropriate to impose a sentence which exposed the appellant to the risk of further punishment when the punishment he had already experienced greatly exceeded the maximum that the judge would have been able to impose at the outset of the proceedings.  

9.  In those circumstances we accede to the submissions made on behalf of the appellant by Mr Stelling.  We set aside the sentence of the two year conditional discharge.  We would have wished to impose a prison sentence of perhaps five months, reflecting the fact that the appellant pleaded guilty, but that with his record he could expect little mercy from the court so far as length of sentence was concerned.  That, however, is not open to us.  This court is not permitted to impose a sentence which is more severe than the sentence imposed by the original sentencing court.  In those circumstances the only course we can take is to impose an absolute discharge.  To that extent this appeal is allowed.

10.  We add as a postscript that we strongly suspect that at some time in the future there will be a court looking at the antecedents of this appellant and noting that the Court of Appeal substituted an absolute discharge for an offence of common assault in circumstances where no doubt the learned judge then considering it will have reason to question the sanity of this court.  However, that is for another day. 

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