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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 >> Fitzpatrick, R. v [2018] EWCA Crim 1768 (08 June 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1768.html Cite as: [2018] EWCA Crim 1768

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		8 June 2018

LORD JUSTICE SIMON:

1. This is an appeal against sentence brought with the partial leave of the single judge. The sentences were passed on 10 November 2017 by Mr Recorder Hussain QC in Preston Crown Court.
2. On 5 July, the appellant had pleaded guilty to a single charge, count 8, of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 26 July, he had pleaded on re-arraignment to a further charge of section 18 assault, count 6; a charge of assault occasioning actually bodily harm, contrary to section 47 of the 1861 Act, count 1; and a charge of conspiracy to pervert the course of justice, contrary to section 1(1) of the Criminal Law Act 1977, count 9.
3. He was sentenced for these offences to the following terms of imprisonment. On count 1, 12 months. On count 9, 18 months consecutive. On count 6, an extended sentence of 8 years consecutive, consisting of a custodial term of 6 years' imprisonment and a 2-year period of extended licence. On count 8, to an extended sentence of 14 years consecutive, consisting of a custodial term of 12 years and a 2-year period of extended licence.
4. The victim of the assaults was LA. She and the appellant had been in a relationship for over 2 years. During that period the appellant had subjected her to a number of assaults committed against a background of controlling and abusive behaviour. He would often apologise after the assaults, but would also threaten that if she ever reported him to the police he would hurt or kill her or harm members of her family.
5. In July 2015, the appellant and LA held an engagement party at a public house in Blackpool. During the course of the evening the appellant became increasingly discontented as he felt that he had not seen her during the evening. She in turn became upset and they later returned to his mother's address together. The appellant continued to argue with her and became increasingly angry. When he went upstairs she left in a taxi and went to a friend's house. From there she went to another friend's house where a party was underway. The appellant arrived at the party looking for her and they argued. The appellant told her that he was leaving and she attempted to persuade him to stay. He pushed her away and when she tried to move back towards him he headbutted her in the face. He then struggled with other partygoers before making a threat and leaving the scene. This criminal conduct was charged as count 1, the section 47 assault.
6. The appellant later pleaded with her not to leave him, attributed his behaviour to intoxication and sent her numerous text messages. They were separated for 2 weeks, at the end of which she was persuaded to resume the relationship.
7. By July 2016, they were living together. On about 23 July, an argument developed about a girl whom the appellant had slept with. He told LA that if she did not shut up he would hit her with a glass bottle that he was holding. When he attempted to hit her over the head with it she raised her arm in self-defence. The bottle struck her wrist causing significant pain. The appellant immediately apologised.
8. The following day the two of them went to hospital. The appellant asked her what she would tell medical staff and she told him that she would say that she fell over. The assault caused a broken wrist which had to be put in a plaster cast. This assault was charged as count 6 on the indictment, the first of the two section 18 offences.
9. On 18 September 2016, the appellant and LA were at their home again. A friend of his was also present. The appellant began to make abusive comments directed towards LA. When she attempted to leave the room he blocked her and, as she tried to get past, he pushed her to the floor and began to punch her repeatedly to the face and head. His friend shouted at him to stop. The appellant then began to apologise and tried to cuddle LA, who crawled under a lounge chair to get away from him. She asked the appellant's friend to help her as she was in severe pain and was concerned about her eye. The appellant told his friend not to move. The appellant left the room for a short while before returning to say he had called the police. In fact he had not done so. When he saw that she was holding a mobile phone he took it from her and prevented her from leaving the property.
10. Eventually he took her to hospital. She did not disclose details of the assault at that point. She said that she had been hit with a bottle. She was found to have severe periorbital swelling around her left eye. There was bleeding, loss of vision and she was unable to open her left eye. When further examined she was found to have a subconjunctival haemorrhage, a hard globe and a fixed and dilated pupil. She was given medication and told to return the following day. This assault was charged as count 8 on the indictment.
11. The couple returned to their house where they remained until early in the morning of 21 September, when the appellant began verbally to abuse LA again. She told him she could not cope with his behaviour and he told her to leave. She then left the house and called the police.
12. The appellant was arrested and during his police interview claimed that LA had mood swings and that she had fabricated the allegation because she was drunk. He said she had sustained her most recent injury having been struck by a bottle when out drinking with friends. He denied that he had ever assaulted her and accused her of abusing alcohol and drugs.
13. The injuries she sustained from the appellant's most recent act of violence were serious. She underwent a number of operations to her left eye which included an incision to relieve pressure on her eyeball. There were signs of irreversible optic nerve damage and an ophthalmic examination found her to have severe and permanent loss of vision in that eye. The assault had also caused glaucoma which required medication. As a result she was at risk of severe glaucoma and detachment of the retina and neovascular membrane in the future. She would also be subject to bleeding in her left eye which would further reduce her vision. The nature of the injury had also caused a small risk that she would lose her vision in her other eye. This could occur at any time.
14. While on remand at HMP Preston the appellant acquired a mobile phone and made contact with a close friend, Lee Jumeaux. The two communicated through text messages. Jumeaux undertook errands for the appellant and used his car.
15. On 2 June, LA was on Park Road in Blackpool when she saw Jumeaux drive past in the appellant's vehicle. He stopped and spoke. He asked her how much money it would take to prevent her from giving evidence at court. He suggested amounts ranging from £10,000 to £30,000. She replied that no amount of money would make her withdraw her support for the prosecution. Instead she reported the incident to the police. This conduct was charged as count 9 on the indictment, conspiracy to pervert the course of justice.
16. Lee Jumeaux was convicted for his part in the conspiracy and sentenced to a term of 2 years' imprisonment. The appellant gave no comment answers when questioned about the allegation that he had conspired to pervert the course of justice.
17. There were two victim personal statements before the Crown Court, which this court has also seen and read. They describe in detail the effect of the most recent assault in terms of her physical and mental health and its effect on her social and working life. They also describe the financial effect of being self-employed and off work for 2 months. As well, LA struggled now to read, which she had to be able to do for her work.
18. The appellant was aged 45 when sentenced. He had 12 convictions from February 1986 to October 2008. His relevant convictions included offences of section 18 wounding in 1999 and assault occasioning actual bodily harm in 2008.
19. There was no pre-sentence report but the Recorder had the benefit of a psychiatric report dated November 2017 made by Dr Amit Sharda at the request of the court. That report concluded that the appellant was impulsive and liable to acts of violence when in situations of conflict. The problems within his relationships were attributed to his fear of abandonment. In Dr Sharda's opinion the appellant also presented with symptoms consistent with bipolar disorder. His use of cocaine and misuse of alcohol would have impaired his mood and judgment at the time of the offences. Since his remand he had engaged well with the prison mental health in-reach team, had been receiving psychological treatment and was being prescribed the appropriate medication. He did not meet the criteria for detention under the Mental Health Acts 1983 and 2007.
20. The report outlined that there were historic static factors which indicated an increased risk of violent re-offending. These were his past violent behaviour and criminality from adolescence. He had two significant previous violent convictions and there was reference to him losing friends due to his violence. The report concluded that the appellant's risk of future violence lay within "modifiable factors" such as the use of drugs and alcohol in accordance with prescribed medication. In the opinion of Dr Sharda the appellant's risk of future violence within relationships required further investigation.
21. In passing sentence, the Recorder referred to a number of character references as well as the psychiatric report. He set out the facts as we have described them and concluded that a lengthy sentence of imprisonment should be imposed. He then went on to consider the question of dangerousness. The appellant had previous convictions for violence and in 1999 had been sentenced to a term of 5 years' imprisonment in relation to a shooting. The court was satisfied that he presented a significant risk of committing further specified offences and of causing serious harm to members of the public thereby. He therefore met the dangerousness criteria.
22. Although the appellant qualified for a life sentence, the court concluded that this would not be appropriate. In respect of count 1, the court was satisfied that it fell within category 1 of the sentencing guideline. In respect of both counts 6 and 8, the section 18 offences, the court concluded that the offences fell within the category of greater harm and higher culpability. In relation to count 6, there had been the use of a weapon and the intent to cause greater harm than was in fact caused and the victim was particularly vulnerable. In relation to count 8, there was the serious physical injury, the psychological impact, the sustained assault and again the victim was particularly vulnerable.
23. The appellant's previous convictions for violence increased the seriousness. There were also a number of aggravating factors: the location and time of the offences, the continuing effect on the victim, the presence of others, the fact that the victim was forced to leave her home, that the appellant had been intoxicated through alcohol or drugs, the abuse of power within the relationship and the attempt to dissuade her from reporting the offences.
24. The appellant had made efforts to prevent the victim from giving evidence at trial. He had been in contact with Jumeaux by telephone, who had then been acting on his behalf. The appellant was desperate to prevent LA from attending court. On the day she arrived at court he pleaded guilty. The court acknowledged that a guilty plea had been indicated a few days earlier but did not accept that LA would have known that.
25. For counts 6 and 8, the starting point for category 1 was 12 years. The court bore in mind the principle of totality and gave the appellant appropriate credit for his pleas. Having entered a guilty plea to count 9 at the plea and trial preparation hearing, the appellant was entitled to a 25 per cent discount. In relation to the other pleas entered late in the day, he would be afforded 10 per cent credit.
26. The sentences that were passed were those that we have already described, with each sentence to be served consecutively.
27. In the grounds of appeal a number of point were taken. It is unnecessary for us to deal with those points since Mr Maher, who appears today, has focused on the primary point, which is that these sentences viewed overall were too long as a matter of totality.
28. The crimes charged as counts 6 and 8 were serious and repeated crimes of violence committed against a domestic partner with all the aggravating features identified by the Recorder. The threats and persuasions not to report his offending and the further offence charged as count 9 were also significant factors bearing on the overall seriousness of the offending.
29. In our view, Mr Maher is correct in accepting that the only point that arises on this appeal is the issue of totality.
30. Having considered the matter carefully, we are persuaded that the overall determinate sentence of twenty-one and a half years was too long by a factor that entitles this court to intervene. In our view, the overall determinate term for these offences should have been a term of sixteen and a half years and not twenty-one and a half years.
31. There are various ways in which that result could have been achieved, and can be achieved, but we proceed on this basis. We reduce the determinate term on count 6 from 6 to 4 years and on count 8 from 12 to 10 years and to that extent alone the appeal is allowed.