2017/03780/A3
Neutral Citation Number: [2018] EWCA Crim 536

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  14th  March  2018

B e f o r e:
LORD  JUSTICE  GROSS

MRS  JUSTICE  LANG  DBE

and

MR  JUSTICE  PHILLIPS

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R E G I N A
 
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MARK  McGINTY

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Non-Counsel Application

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J U D G M E N T
Wednesday  14th  March  2018

LORD JUSTICE GROSS:  I shall ask Mrs Justice Lang to give the judgment of the court.

MRS JUSTICE LANG:
1.  On 21st June 2017 in the Crown Court at Preston the applicant pleaded guilty to one offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861.  

2.  On 3rd August 2017 he was sentenced to an extended sentence of eleven years and eight months, comprising a custodial term of eight years and eight months and an extended licence period of three years.  

3.  The applicant renews his application for leave to appeal against sentence following refusal by the single judge on the grounds that the judge: (1) erred in finding that he was dangerous; (2) adopted too high a starting point under the guidelines; and (3) passed a sentence that was manifestly excessive.

4.  In summary, the facts were that the applicant violently attacked the complainant, who was his former partner and mother of his son, late at night outside her home.  He repeatedly punched, kicked and stamped on her face and head.  He attempted to strangle her, using his hand around her neck, and held a cloth over her face, which suffocated her.  He shouted that he would kill her and she feared that she was going to die.

5.  The complainant suffered fractures to her face, a broken nose, damage to facial nerves and teeth, and her sight had been affected.  She injured her ribs.  She has been diagnosed with post-traumatic stress disorder and has been prescribed antidepressants.  She has had to give up work and she is now frightened to leave the house.

6.  In our judgment, the judge was entitled to assess the applicant as dangerous within the meaning of section 226 of the Criminal Justice Act 2003 on the evidence before him, even though the applicant did not have a history of violence.

7.  The pre-sentence report stated that in the commission of this offence the applicant had demonstrated poor temper control, controlling and manipulative behaviours, distorted thinking, an inability to manage rejection, sexual jealousy and excessive violence.  He was angry that his ex-partner was out late and seeing other men.  The author concluded that this offence was triggered by the specific circumstances in the applicant's relationship and therefore he did not present a continuing risk to the public of serious harm by the commission of further offences and so did not meet the dangerousness criteria.  However, she assessed him as representing a high risk of serious harm to female partners.  

8.  The judge concluded that, although this attack arose out of a particular set of circumstances, similar circumstances could easily arise again, provoking a similar, excessive response from the applicant.

9.  In our view, the judge was entitled to find that there was a significant risk that the applicant would commit further specified offences and thereby cause serious harm to others, in particular female partners.

10.  It was agreed that this was a category 1 offence under the guidelines.  An increase in the starting from twelve to thirteen years was warranted by the aggravating features: the applicant was intoxicated; the assault was on a public street; and there were significant ongoing effects on the complainant and her family, who may now have to move house.

11.  After the discount for his guilty plea, the custodial term was eight years eight months.  The judge correctly directed himself that he was not obliged to pass an extended sentence; but in this case he was satisfied that an extended sentence was required to protect the public.  It was open to the judge to impose a three year licence period, which is in the middle of the range, in the light of his finding that the applicant represented a grave risk.

12.  In our judgment, neither the custodial term nor the licence period was manifestly excessive.

13.  For these reasons the renewed application for leave to appeal against sentence is refused.