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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lockwood, R. v [2008] EWCA Crim 1099 (01 May 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1099.html Cite as: [2008] EWCA Crim 1099

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 1st May 2008

1. LORD JUSTICE TOULSON: On 17th December 2007 at Leeds Crown Court, the appellant pleaded guilty to causing grievous bodily harm with intent. He was subsequently sentenced to imprisonment for public protection, with a minimum term of 3 years less 106 days spent on remand.
2. The single judge gave leave for him to appeal against the specified minimum period, but not against the imposition of an indeterminate sentence. He renews his application for permission to appeal against the latter. The argument on his behalf has been presented by Mr Smith attractively and succinctly.
3. The offence happened on 11th September 2007. The complainant visited a friend in Castleford. There were a number of people also at the friend's home. A time came when the complainant went to a local shop to buy some beer. The appellant and another man went with him. The complainant had not previously met either of them.
4. To cut matters short, the appellant struck the complainant without provocation, no doubt because he, the appellant, was very much the worse for drink. It was a very nasty attack. He struck the complainant on the back of the head with a bottle, and struck him again on the head with the bottle which was by this time broken. The complainant then fell to the ground and there received a number of kicks in the head from the appellant. The complainant lost consciousness. The appellant ran off. The complainant was taken to hospital. He had to have 20 stitches in the back of his head. His front teeth went through his top lip. He also had some injuries to the fingers of his left hand, which fortunately turned out not to have long-term consequences.
5. When later arrested, the appellant made no comment to the questions asked, even after he had been positively identified on a VIPER video identification.
6. The appellant's basis of plea was that he accepted using a bottle to attack the complainant and accepted that it was in a broken state, and he accepted causing all the injuries sustained by the complainant.
7. The appellant was aged 23 and had previous convictions for offences of violence, two for common assault and one for affray and assault occasioning actual bodily harm. These had occurred between 2002 and 2004. All of them involved unprovoked attacks on members of the public going about their ordinary daily life. The nastiest of them was in 2002, when the victim came out of a public phone booth to be attacked by a number of men, including the appellant. He was knocked to the ground and kicked in the face while on the ground.
8. The judge had a pre-sentence report. The explanation for the appellant's behaviour was that he had become aggressive in drink. He put his behaviour down to falling in with the wrong crowd, but it was submitted that there had been a significant period of time since his last conviction and that he was showing real signs of growing up. In those circumstances, it was submitted that he did not pass the test of dangerousness. The judge concluded otherwise.
9. In refusing leave to appeal on this ground, the single judge made these comments:

"(1) You pleaded guilty to an offence of causing grievous bodily harm with intent. You attacked your victim with a broken bottle and kicked him causing serious injuries. You have previous convictions for violence, including two specified offences of affray and assault occasioning actual bodily harm committed in November 2001. In those circumstances, the statutory presumption of dangerousness in section 229(3) of the Criminal Justice Act 2003 applied.

(2) I do not consider that the learned judge can be faulted for not disapplying that presumption. He was entitled to conclude you were dangerous within the meaning of the section having regard to the circumstances of the index offence which involved extreme violence and those of the previous specified offences. All three offences involved violence when you had consumed alcohol. The imposition of a sentence for public protection was not wrong in principle."

With those comments we agree.

10. There remains the question whether the minimum period specified by the judge was excessive. As to that, the single judge commented as follows:

"(3) The notional determinate term was 6 years imprisonment which equated, after giving you full credit for your guilty plea, to 9 years imprisonment after a full trial. I consider that it is arguable that this starting point is too high. Although there is no guideline case as such, the case of R v Crabb (2006) 2 Cr App R(S) 45 and the other cases referred to in that case suggest that the appropriate range of sentence for offences of wounding with intent using a bottle or glass is 4-6 years after a full trial. This was a serious and savage attack which would merit a starting point at the top end of that range, but not as high as 9 years."

11. Mr Smith has drawn our attention properly to the guidance now issued by the Sentencing Guidelines Council, which for an offence of this description would suggest a starting point of 5 years and a range of 4 to 6 years. Mr Smith has indicated that he would accept and adopt on this issue the comments of the single judge.
12. We agree that a notional determinate term of 6 years' imprisonment on a plea would have been excessive. Nevertheless, this was a very nasty case. Hitting somebody on the head with a broken bottle and then kicking them in the head is serious violence, and the court was entitled to take into account also his previous record.
13. In the circumstances, we think that an appropriate sentence after a trial would have been in the region of 7 years' imprisonment. The appellant had not shown remorse at an early stage. We consider that on a plea of guilty an appropriate sentence would have been 5 years' imprisonment. Accordingly, the minimum specified term should be 2½ years, less time spent on remand.
14. We therefore allow the appeal to the extent of substituting a minimum term of 2½ years, less 106 days spent on remand, for the minimum term set by the judge.
15. Thank you, Mr Smith.
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