Neutral Citation Number: [2016] EWCA Crim 1234
Case No: 201600763 A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday 18th August 2016

B e f o r e:

LORD JUSTICE GROSS 

MR JUSTICE KING
MR JUSTICE SWEENEY 
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R E G I N A 

v 

MARK ANTHONY POWELL 
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Computer‑Aided Transcript of the Stenograph notes of
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Mr S Field appeared on behalf of the Appellant
The Crown did not attend and was unrepresented
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J U D G M E N T (Approved) 
1.	MR JUSTICE SWEENEY:  This is an appeal against sentence by leave of the single judge.  On 18 March 2014, in the Sheffield Magistrates' Court, the appellant, who is now aged 24, pleaded guilty to three offences: dangerous driving, driving without a licence and driving without insurance.  He was remanded on unconditional bail until 17 April 2014, when he was committed for sentence to the Sheffield Crown Court.  At that court, on 30 July 2014, the appellant pleaded guilty to two offences: assault occasioning actual bodily harm and possessing a disguised firearm, the latter being an offence that carries a five year minimum term.  
2.	On 9 January 2015 the appellant was sentenced by Her Honour Judge Wright as follows: possessing a disguised firearm, five years' imprisonment; assault occasioning actual bodily harm, one year and nine months' imprisonment consecutive; dangerous driving, four months' imprisonment concurrent; driving without a licence, no separate penalty, licence endorsed; driving without insurance, no separate penalty, licence endorsed.  The total sentence imposed was therefore one of six years and nine months' imprisonment.
3.	In addition, the judge disqualified the appellant from driving for two years and until he passes an extended driving test, made him the subject of a restraining order until further order in relation to the victim of the assault, and also imposed the relevant Victim Surcharge Order.
4.	The facts, in short, are these.  
5.	The appellant has a number of previous convictions, all in 2011 and variously for conspiracy to rob, common assault, possession of a bladed article in a public place and affray, for which he was ultimately and variously sentenced to periods of custody from four to eight months.  
6.	The driving offences were committed on 23 December 2013.  At around 3.15 in the morning police officers saw the appellant driving a silver Toyota motor vehicle erratically in the street in Sheffield.  The officers tried to stop the appellant, using their sirens and lights, but the appellant, appreciating that he had neither a valid licence nor insurance, accelerated away, driving at speeds approaching 60 miles per hour in a 30 miles per hour zone and weaving from side to side.  Eventually the appellant swerved around a corner, lost control and collided with a metal post and wall.  He was arrested at the scene.  In interview thereafter he put forward a prepared statement admitting the offences.
7.	As we have already indicated, on 18 March 2014 the appellant was remanded on bail in relation to those driving offences.  Thus, he was on bail when he committed the other two offences a few weeks later.  
8.	The assault was committed on the appellant's former partner, Kiera Robinson, who lived in a rented house in Sheffield with her two children, a five‑year‑old son from another relationship and a five‑month‑old daughter by the appellant.  On the morning of 9 April 2014 the victim returned from taking her son to school.  She was pushing her daughter in her pram.  As she pushed the pram through the front door, the appellant approached and followed her into the house.  The victim went upstairs to feed her daughter.  The appellant stayed downstairs and watched television.  When the victim came downstairs, about 25 minutes later, she asked the appellant why he was there.  He said that he had come for their daughter.  The victim suggested he come back later as the baby was asleep.  He refused to leave and the victim went back upstairs.  
9.	The victim was then breast‑feeding the baby on the bed when the appellant came into the room.  He wanted the victim to sign an agreement in respect of access to their daughter.  The victim refused to sign, saying that they could sort it out in court.  The appellant then knelt behind her on the bed and grabbed her hair, pulling clumps of hair out of her head.  She did not react.  On letting go of her hair, the appellant leaned forward and bit her cheek.  He then slapped and punched her to the right side of her body and on her arms and legs.  Throughout this the baby was in the victim's arms.  Unsurprisingly, the baby became distressed. The appellant then prised her away from the victim.  After saying that he was leaving Sheffield, the appellant handed back the baby and left the house.  The victim went downstairs to look for the phone but could not find it.  She put some frozen peas on her face where she had been bitten.  
10.	The appellant then returned to the house with some sandwiches.  He offered a sandwich to the victim and said he was sorry.  She said that she did not want the sandwich, which made the appellant angry again.  
11.	The victim went upstairs as the baby had woken up.  The appellant followed her.  At one point the victim was sitting on the bed and the appellant punched her in the stomach with force - such force that it caused her to urinate herself.  He left the room and the victim removed her soiled trousers and looked for some clean clothes.  The appellant returned while she was naked from the waist down.  He verbally abused her, saying that she was fat and that no man would come near her.  He then punched her to the side of the head.  She fell to the floor and begged him to help her.  He grabbed the inside of her thighs and tried to pull her legs open.  The victim resisted and the appellant then scratched at her buttock.  He then ripped her top off, leaving her naked.  He grabbed her under her arms and said he would show the street how disgusting she was.  He pulled her to the window and tried to open the net curtains in order to expose her naked to the street.  
12.	She managed to break free, but the appellant then grabbed her around the throat and squeezed hard for several seconds.  He released the pressure and she screamed.  He then applied more pressure.  The victim managed to get away and ran downstairs into the kitchen.  As she was looking for the phone, the appellant came up behind her and put his hand over her mouth.  He took a knife from the knife block and put it to her throat, threatening to kill her.  He then let go.  His mobile phone rang and he answered it.  He then went to get a bag from the lounge, came back into the kitchen, gave the victim a hug and left.  A neighbour had heard the victim screaming and called the police.  
13.	The victim's injuries, comprising loss of hair and bruising and scratching to various parts of her body including her face where she had been bitten, were photographed and have been seen by the court.
14.	The appellant was arrested at his home the following day.  During a search of his bedroom the police found a taser disguised as a mobile phone.  A police officer discharged the taser to make it safe.  The process took about three minutes.  The taser was later examined and found to be a rechargeable unit.  The charging lead was also discovered in the appellant's bedroom.  The taser, described technically as a conducted energy device, was designed for the purpose of discharging electrical current into the human body with the intention of causing debilitating pain, muscle spasm, shock and disorientation for the duration of the electric current being applied.  It was, we repeat, possessed whilst on bail.
15.	In a written basis of plea, not accepted by the prosecution in relation to the assault occasioning actual bodily harm, the appellant stated that he had been in a relationship with the victim for seven to eight years and that they had a daughter together.  He had, he said, visited the complainant and his daughter regularly and was frustrated and annoyed when she refused to allow him to see his daughter.  Despite their differences, the relationship had continued and was of a sexual nature.  A condom seen in one of the photographs of the scene had been left by him at the house.  Whenever he visited, he went home at around 11 pm by taxi.  On 9 April he had visited the house and the complainant opened the door to him, wearing only a top.  She regularly did not wear clothes in the house.  An argument began when the victim picked up a kitchen knife and waved it at the appellant, threatening to stab him.  He restrained her by taking hold of her arms and shaking them until the knife fell to the floor.  In the course of the incident he sustained a cut to his finger.  After the argument the victim asked if he loved her and tried to kiss him.  
16.	Thus he admitted that in the course of a domestic argument about contact with his daughter, he had: (a) slapped the victim on the right hand side of her backside; (b) bitten the victim on the cheek; and (c) grabbed her round the neck and held her for four to five seconds.  He specifically denied that: (a) he had grabbed her hair and/or pulled clumps out of it; (b) slapped and punched the right side of her body; (c) punched her in the stomach; (d) punched her in the side of the head; (e) grabbed the inside of her thighs; (f) put a knife to her throat; and (g) dragged her to the window.  
17.	As to the taser, he admitted possessing a disguised firearm, saying that he had purchased it as he was terrified of repercussions after he gave evidence for the prosecution in a criminal trial in 2010/2011 that led to his two co‑accused receiving prison sentences.  He denied that he had ever used the taser or taken it out of his bedroom (where it was found by the police).  There was no dispute as to the basis of plea in relation to the taser.
18.	However, in the light of the areas of dispute identified in the basis of plea in relation to the assault, a Newton hearing was held on 9 January 2015, during the course of which both the victim and the appellant gave evidence.  At the conclusion of the hearing the judge rejected the appellant's account, stating that she found the victim to be a coherent and fluent witness who had been consistent throughout her police interviews and in her evidence, whereas the appellant had been inconsistent and lacking detail in his accounts.  The judge accepted the evidence given by the victim therefore in its entirety and found that the appellant had entered the victim's home uninvited, gaining entry when she was struggling to get through the front door with a pushchair, and that on a number of occasions during the incident the appellant had punched her, grabbed her hair (causing her hair to be pulled from her scalp), forcibly removed her top after she had removed her trousers having wet herself through fear, and that that was how she came to be naked when he pushed her towards the window.  
19.	There was a pre‑sentence report in which the author indicated that it was evident that there was a pattern of domestic abuse and that the appellant minimised that - claiming that his violent and abusive behaviour was in self‑defence and accusing the victim of lying.  The appellant was assessed as presenting a high risk of serious harm to known adults and to the public.  In particular, he was assessed as presenting a high risk of serious harm to children - the risk being his children witnessing his violent and abusive behaviour.  The author observed that before the appellant could effectively address his offending behaviour, he needed to accept greater responsibility.  A custodial sentence was inevitable.  He would need a custodial sentence of at least three years to enable him to complete the Building Better Relationships programme on licence and the imposition of a restraining order was an imperative part of any risk management plan.
20.	In her victim impact statement, the victim explained the considerable psychological effect upon her of the appellant's actions and her concerns about what would happen when the appellant was released.
21.	In passing sentence, the judge rehearsed the facts, observing that the attack upon the victim had been sustained over a number of hours, and that both it and the weapon offence had been committed whilst the appellant was on bail.  Given her findings against the appellant at the Newton hearing, he would receive less credit for his plea to the assault than would otherwise have been the position.  The assault, she said, was a category 1 offence according to the relevant sentencing Guideline.  There was significant psychological impact on the victim, who was vulnerable.  It was a sustained and repeated assault.  There was the use of weapons: teeth and a knife.  The starting point was 18 months with a range of one to three years, but the offence was aggravated by the appellant's previous convictions, the fact that it was committed on bail, the location being the victim's home and the presence of his child during its course.  He had relevant previous convictions for robbery in March 2011 and common assault, breach of a suspended sentence order, possession of an offensive weapon and affray.  The judge noted the content of the pre‑sentence report and indicated that the court accepted that he had given evidence against his co‑accused in relation to the conspiracy to rob.  He had acquired a taser when he knew that his erstwhile co‑defendants were coming out of prison.  It was clear that he wanted to leave Sheffield.  
22.	The judge indicated that she had been provided with the relevant case law in relation to the minimum sentence provisions and had considered the questions posed in Avis: namely, the sort of firearm, the use made of the firearm, the intention when using the firearm and the appellant's criminal record.  Parliament, she said, had provided that disguised weapons fell within the provisions for a minimum sentence of five years' imprisonment and the appellant had deliberately acquired the taser knowing that it was illegal to possess it.  He had an intention to use it, albeit in self‑defence.  It was a firearm that could cause significant injuries.  Those factors justified a custodial sentence.  He was not of good character and had relevant previous convictions showing a propensity for violence.  
23.	Having referred in more detail the authorities, the judge found that there were no exceptional circumstances in relation to the weapon, how the appellant came to possess it or his personal circumstances, such as to justify departing from the prescribed minimum sentence.  
24.	All of the offences, the judge said, were so serious that only custody was justified.  The principle of totality, however, was borne in mind.  The sentences for the assault and possession of the firearm had to be consecutive, but bearing in mind totality, and for that reason only, the sentence for assault would be reduced.  The sentence for that offence after trial would have been in the region of two years.  With appropriate credit, the appellant was sentenced to one year and nine months' imprisonment for the assault and to five years' imprisonment consecutive for the disguised firearm.  Bearing in mind totality, he was sentenced to four months' imprisonment for the dangerous driving concurrent.  It was against that background that the judge imposed the overall sentence to which we have already made reference.
25.	As originally drafted, there was one ground of appeal, namely that a reduction in sentence of three months from two years to one year and nine months in relation to the assault was insufficient to properly reflect the principle of totality.  The single judge was not minded to grant leave on that ground, but rather did so on a ground of his own composition as to the possible existence of exceptional circumstances in relation to the minimum sentence for the disguised firearm offence in the light of the decision of this court in Beaman [2016] EWCA Crim 801 – in which a minimum sentence was reduced on appeal.  We have also heard argument as to the original ground.
26.	On the appellant's behalf, Mr Field began with totality.  He repeated the submissions made in writing as to three months being too short a period, but accepted that if the court read the judge's sentencing remarks as indicating that the sentence of two years after a trial itself reflected a deduction for totality, the his argument would lack force; the more so, he recognised, because the sentence imposed in relation to the offence of dangerous driving was imposed concurrently.
27.	As to the single judge's ground, Mr Field recognised that he was in some difficulty in that in his advice on appeal, in which he analysed in admirable fashion the authorities then in existence in relation to minimum terms, he had concluded, for cogent reasons that he had set out, that this was not a case in which it was possible to argue that there were exceptional circumstances and thus to argue that the judge had erred in finding to the contrary.  In what he engagingly described, in effect, as a forensic U‑turn, he nevertheless sought to rely on the ground composed by the single judge and thus turned to the case of Beaman.
28.	He pointed out certain factual similarities as between the two cases - certainly to the extent that the weapon was intended for use in self‑defence, and that there was no dispute about the nature of the device, which was broadly the same in its potential to do harm as that in Beaman. He also pointed out that, unlike Beaman, the weapon in this case had not been taken out into the public arena but had simply been retained by the appellant in his room for a year.  He therefore submitted that this court should prefer the single judge's analysis to his own insofar as the merits of the minimum term argument were concerned.
29.	We deal with that argument first.  The authorities make clear that the structured approach identified in Withers [2015] 1 Cr App R (S) 64, is required, starting, as the judge did in this case, with the four questions posed in Avis [1998] 1 Cr App R (S) 420, and leading to the ultimate question as to whether the circumstances relating to the offence and/or the offender are exceptional - which they will be if the imposition of five years' imprisonment would result in an arbitrary and disproportionate sentence.  It is to be noted that in Attorney General's Reference No 115 of 2015 [2016] EWCA Crim 765, this court underlined at paragraph 31 that the word "exceptional" is not to be diluted and that sympathy for the offender, if it applies, is not enough to prevent a judge from doing their statutory duty.
30.	It seems to us that Beaman adds nothing by way of principle that is relevant in this case; rather, it was a case that was decided on its own particular facts.  Applying the appropriate structured approach, as the judge did and for the reasons that she gave, we conclude that there were no exceptional circumstances in this case such as to require any reduction in the minimum term.  Accordingly, this ground fails.
31.	As to the original ground that too little discount was given to reflect the principle of totality, it seems to us to be clear that the judge recognised the importance of the principle.  It is equally clear that the starting point of two years' imprisonment after trial that she identified itself involved, as she indicated, a reduction from what would otherwise have been appropriate precisely in order to respect the principle of totality.  The assault was a particularly serious one.  It was plainly a category 1 offence involving all three factors indicating greater harm and two factors indicating higher culpability.  In addition, appropriately viewed, there were at least six other aggravating features, not least the appellant's previous convictions, the fact that the offence was committed on bail, the presence of the baby and the gratuitous degradation of the victim.  
32.	It therefore seems to us that from a starting point of 18 months, an actual sentence after trial, ignoring any issues of totality, in the order of three years' imprisonment would have been appropriate.  Thus it is clear that the starting point which the judge took in itself represented a considerable reduction to reflect the principle of totality. It will be recalled, in this regard, that she imposed a concurrent sentence in relation to the dangerous driving offence.  
33.	In the result, we conclude that it is not arguable that the total sentence imposed for the three principal offences was outside the appropriate range and thus manifestly excessive.  
34.	In all those circumstances this appeal is dismissed.