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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 >> Cunningham, R. v [2025] EWCA Crim 513 (15 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/513.html Cite as: [2025] EWCA Crim 513

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH
HHJ FULLER KC CP No: 55CH057624

		Royal Courts of Justice Strand London WC2A 2LL
		15 April 2025

1. LORD JUSTICE WARBY: On 25 February 2025 in the Crown Court at Bournemouth, James Cunningham, aged 18, was sentenced by His Honour Judge Fuller KC for 12 offences committed on 1 and 2 December 2024 to which he had earlier pleaded guilty before magistrates.
2. There were eight offences of assault on an emergency worker, contrary to section 39 of the Criminal Justice Act 1988 and section 1 of the Assaults on Emergency Workers (Offences) Act 2018, two offences of racially aggravated threatening behaviour with fear or provocation of violence, contrary to section 31(1)(a) of the Crime and Disorder Act 1998 and section 4 of the Public Order Act 1986 and two offences of damaging property, contrary to section 1(1) of the Criminal Damage Act 1971.
3. The judge imposed a total of 24 months' detention in a young offender institution. The appellant now appeals against sentence by leave of the single judge.

The facts

4. On 1 December 2024 the appellant returned to his mother's address at around 9.15 pm having been bailed by the police under an investigation for an unrelated matter. He shortly became aggressive towards his mother, who had to flee the property at about 9.30 pm. She made three 999 calls and the police attended the scene.
5. Two officers arrived shortly before 10.00 pm when the appellant's mother was outside the property and he was inside. The officers attempted to reason with the appellant and asked him to come down. He told them to "fuck off" and started to launch items out of the window towards them. A wine bottle was thrown towards one officer who had to move to avoid being hit (charge 2). A glass object was thrown at the other officer and smashed on impact with his forearm (charge 3). The officers explained to the appellant that he had just assaulted them and he replied with vulgar abuse, saying that they would have to kill him to take him to jail.
6. The appellant then held up a large kitchen knife and dangled it outside the window. When instructed to put the knife down he replied with threats to kill and said: "You'll have to fucking shoot me." He continued to throw items out of the window. He told the officers he had a high-powered air rifle and that he would shoot the police with it. He said he wanted the police to shoot him.
7. Armed officers arrived. A cordon was set up. The appellant continued to throw items out of the window including a radiator, a TV and a wardrobe or a chest of drawers. He caused significant damage to his mother's property (charge 1). One of the items he threw hit a police car, smashing one of the windows and causing damage costing around £273 (charge 4).
8. The appellant then barricaded himself into the property and refused to surrender. At 1.15 am armed officers stormed the property. One of them, having handcuffed the appellant, tried to move him onto his side, at which the appellant spat at the officer (charge 5). The appellant was kicking out at officers, spitting at them and threatening them and their families with violence. Force was used to get him into the van. As one officer leaned into the van the appellant used words to the effect of "fucking nigger" towards him (charge 6). As he continued to shout the same word he was arrested.
9. The appellant was transported to Poole General Hospital due to concerns that he may have overdosed. He was placed under police guard. At 9.30 am on 2 December he began to verbally abuse hospital staff and to spit in their direction. As one of the two officers guarding him approached the side of the bed, the appellant spat at him, hitting the right side of his face and his left bicep. The appellant was further arrested. A minute later he kicked the same officer to the stomach. Those events were the subject of charge 7. When the second officer reduced his restraint the appellant kicked out with his right leg and hit the officer forcefully to the upper left arm (charge 8). When a nurse entered the room to take out some equipment the appellant made racist remarks towards her, calling her "a black nurse nigger bitch". That was not the subject of a separate charge.
10. The appellant was taken from hospital to Bournemouth Police station where he was placed in the charge of two officers, different from those who had dealt with him before. He threatened to rape one of the officer's mothers and to petrol bomb the officers' houses. He was still in a bite guard. As one of the officers moved towards him to stop him from trying to bite through the guard, the appellant kicked that officer on the shin (charge 9). At 1.40 pm a second officer went to help others who were conducting a welfare check on the appellant in his cell. The appellant was abusive and had to be restrained again. He threatened to kill himself and he threatened to kill the officers if they came in, to look them up on Facebook and to kill them and their children. The appellant then stopped talking and spat at one of the officers, spraying moisture up his right forearm (charge 10).
11. Several hours later, in the evening, the appellant was taken to the interview room. There came a point in the interview when the officer present asked the appellant if he wanted to continue. The appellant mimicked the officer and then called him a "corner shop looking cunt" and referred to him repeatedly as a "Paki" (charge 11). The interview was ended.
12. The appellant continued to be difficult, refusing to leave the room. He had to be carried out. Charge 12 reflected what happened at this stage of events. As he was being restrained the appellant spat on one of the officers, with spit landing on the officer's elbow and shirt. A spit hood was placed on him. As the officers escorted the appellant to his cell he claimed that he was going to kill himself with a sharp object that he said he had obtained from the consultation room. The officers carried out a strip search which found no such object but in the course of it the appellant kicked out and struck the same officer on his right arm.

The sentencing process

13. The appellant was aged 18 at the date of the offending and at the date of sentence. He had nine previous convictions for 12 offences, starting with possession of a knife in July 2020 when he was 13 years old. For that he received a six month referral order. In 2021 that order was extended for an offence of criminal damage. In January 2021 he committed an offence of causing grievous bodily harm with intent, for which he was sentenced in August of that year to a youth rehabilitation order (YRO). Further YROs followed in April 2023, when he was sentenced for offences of criminal damage and battery, and in July 2023 for offences of taking a motor vehicle without consent and making off without paying. In December 2023 he was fined for a non-dwelling burglary. In February 2024 he received a 12-month Detention and Training Order (DTO) for threatening with an offensive weapon and breach of the YRO. He was released from that sentence in August 2024. The present offences were therefore committed when on licence. The appellant had committed further offences subsequent to those the subject of this appeal, including threatening with an offensive weapon and breaching the YRO again, for which he received a further DTO.
14. Before the sentencing judge were statements from the appellant's mother and one of the officers, together with a detailed pre-sentence report. The appellant's mother estimated the damage to her belongings and flat at several thousand pounds. The charge was based on less than £5,000. PC Marshall explained that he was particularly distressed to be threatened and spat on by the appellant that day, having learnt earlier in the day that another detention officer on his team had unexpectedly died.
15. The Pre-Sentence Report reported the appellant's account of the events of 1 and 2 December 2024. He said he had been at the police station in relation to other matters that morning. He then went home and took some Valium and Spice. After that he said he remembered that his mum wanted him out of the house but nothing else. He attributed his behaviour to the drugs. The author of the report found it unlikely that that was the only trigger, suggesting that stress and "an element of immaturity" may have been contributory factors. The report stated that the appellant had experienced adverse childhood experiences, including traumas which may have impacted his development and thinking. The report suggested that due to immaturity the appellant struggled with temperance and with "the violence response to triggers".
16. The appellant's behaviour was described as part of a pattern of offending with no significant gaps over the past four years. He had never had a job, had not completed any training and had no goals as to future employment. His previous contact with the youth offending team had not been effective despite the devotion of significant efforts and resources. He had not demonstrated much remorse. He was assessed as posing a high risk of serious harm to known adults, emergency workers and other staff, the general public and himself. If sentenced to custody there was a risk he would be homeless on release. The proposal was a 24-month community order with an unpaid work requirement of 80 to 150 hours and a 30 day rehabilitation activity requirement.
17. In submissions to the judge, the categorisation of each offence within the applicable sentencing guideline was agreed. The judge identified six aggravating factors: the offending was committed when intoxicated; it was committed when on licence (the judge could have added that the appellant was also on bail at the time); the assaults were accompanied by threats of violence and sexual and/or racial abuse which were not themselves the subject of charges; the offending was prolonged and relentless; spitting was particularly demeaning and a great cause of anxiety to victims who feared the transmission of disease; and the previous convictions further aggravated the offending.
18. As to mitigation, the judge had regard to the appellant's relative youth. He referred to the content of the PSR. He accepted that it had identified factors which had led the appellant to the position he was now in and that some of the threats that he had made were primarily a result of immaturity. However, the judge observed, the appellant had already accumulated enough experience to be fully aware of the consequences of his actions and their effects could be devastating. The PSR showed, said the judge, that the victims had reason to fear that the appellant was capable of "quite a lot of violent conduct."
19. The judge had regard to totality and current conditions in custody and gave the appellant full credit for his early guilty pleas. He passed the overall sentence of 24 months' detention in a young offender institution which we have mentioned, structured as follows: for charge 1, the damage to his mother's property, two months' detention; for the common assault in charge 2, a further two months' detention consecutive, with charges 3 and 4 attracting concurrent sentences of two months and one month respectively; for charges 5 and 6 the sentences were four months and six months' detention, each consecutive to the sentence on charge 2; for charge 7 the judge imposed a sentence of detention of four months consecutive, with one month concurrent on charge 8; for charges 9 and 10 the sentences were four and six months' detention consecutive to the sentence on charge 7; for charge 11 the sentence was six months' detention consecutive to charge 10, with four months concurrent on charge 12.

The appeal

20. The written advice and grounds of appeal identified two grounds.
21. First, it was submitted that the judge did not pay sufficiently detailed attention or give proper weight to the appellant's age or the factors identified in the over-arching guidelines on sentencing children and young people. The appellant had turned 18 on 15 November 2024, a matter of weeks before this offending. The authorities show that this age barrier is not a cliff edge. Yet the judge did not refer to the guideline in his sentencing remarks, nor did he mention related matters of mitigation. It was suggested that the judge had erred in his approach by treating the appellant as an adult offender who was simply immature.
22. Secondly, it was submitted that the judge had insufficient regard to totality. It was argued that he had treated the appellant's offending as involving four separate periods: offending at the appellant's mother's property, at the hospital, at the police station and in interview. On a proper analysis this was said to be a single series of connected offences which should have been treated as such in sentencing. The right approach would have been to take one charge as the lead offence, imposing a sentence to reflect the overall criminality, with other sentences running concurrently. The judge's approach of splitting the offending into periods and imposing consecutive sentences in respect of some of the offending was said to be artificial and to have led to a total sentence that did not fairly reflect the overall circumstances of the case.
23. In support of this ground of appeal it was argued among other things that the implied sentence after a trial of six months' detention for charge 7 was unjustifiable when the top end of the starting point of the range which the prosecution identified for that offence, applying the guidelines, was one of 16 weeks' custody.
24. Granting leave to appeal, the single judge stated that the second ground of appeal was arguable and expedited the hearing in view of the appellant's age.

Assessment

25. We have not been persuaded by Miss Lanham that the judge erred in principle when considering the appellant's age and immaturity. He did not treat these as irrelevant. To the contrary, he expressly referred to them as factors bearing on his approach to sentence. He referred to the pre-sentence report, which focused on the matter of maturity and which summarised the well-known research referred to by this court in Clarke [2018] EWCA Crim 185, [2018] 2 Cr. App. R (S) 52 about the pace of development in young people under 25. That case, and the underlying research, are both very familiar to sentencing judges who can also be taken to be well aware of the contents of the over-arching guideline. We are satisfied that the judge had that guideline well in mind when sentencing this appellant. He made no error in not spelling that out.
26. The critical factor is for the judge to make an individualised assessment of the particular young adult's maturity or lack of it and its impact on his culpability and the appropriate sentencing outcome. The sentencing remarks in this case make clear that the judge conducted just such an assessment, drawing on and evaluating all the relevant material available to him.
27. Turning to the second ground of appeal, the revised guideline on totality, effective since 1 July 2023, identifies a three-stage approach when imposing determinate custodial sentences for multiple offences. The first two stages are to consider the sentence for each individual offence and then "determine whether the case calls for concurrent or consecutive sentences".
28. We do not agree with the appellant's criticism of the individual sentences for the offences of threatening behaviour and assault. The starting point for that criticism is an alleged disparity between the top end of the sentencing range identified in the prosecution sentencing note and the judge's notional sentences after a trial. In our view this approach fails properly to reflect the sentencing process in a case of this kind.
29. Each of these offences has a "basic" version which attracts a statutory maximum sentence of six months' custody and an aggravated version which attracts a maximum sentence of two years' custody. The Sentencing Council guidelines make clear that in sentencing for the aggravated offence the court should first identify the sentencing category range for the basic version of the offence, adjust for aggravating and mitigating features, and then at Step 3 apply an appropriate uplift to reflect the fact that the court is sentencing for the aggravated version. Guidance is provided on the extent of this uplift. The guideline for assault on an emergency worker spells out in terms what is obvious in any event: "the uplifted sentence may considerably exceed the basic offence category range."
30. In these circumstances, the top end of the appropriate sentencing range for the basic offence affords only limited guidance as to the appropriate sentence after a trial for the aggravated version. The judge did not spell out, as prescribed by the guidelines, the sentences he would have passed for the basic offences and the extent of the uplifts applied to reflect the aggravated nature of the offending under consideration. The outcomes show however that he must have undertaken that exercise. Having reviewed those outcomes we are not persuaded that any of the individual sentences was itself wrong in principle or manifestly excessive.
31. To take one of the examples given, the offence of assault in charge 7 was agreed to fall within guideline Category A2 with a range of up to 16 weeks' custody for the basic offence. The six aggravating factors identified by the judge would have amply merited a sentence at or even beyond the top end of that range, even allowing for the appellant's immaturity. An uplift to 26 weeks after a trial to reflect the fact that this was an assault on an emergency worker with a maximum sentence of two years was well within the area of discretionary judgment available to the judge. Similar reasoning applies to the individual sentences passed for the other aggravated offences, all of which were properly assessed as crossing the custody threshold.
32. Nor do we consider the judge erred in principle at the second stage of the totality assessment. The guideline identifies circumstances in which concurrent and consecutive sentences will ordinarily be appropriate and gives illustrative examples. The appellant's submission relies on one of the circumstances in which concurrent sentences are ordinarily appropriate, namely where the offences arose "out of the same incident or facts" or "there is a series of offences of the same or similar kind". Illustrations of what is meant by a series of offences are given. They include repetitive shoplifting or repetitive benefit fraud.
33. The offending in the present case does not closely match these descriptions, nor does it compare with the illustrative examples. Moreover, the guideline indicates that concurrent sentences for a "series" of offences are likely to be especially appropriate where all the offending is "committed against the same person". By contrast, the guideline indicates that consecutive sentences will ordinarily be appropriate in cases where offences of a similar kind are "committed against different people", where concurrent sentences would not sufficiently reflect the overall criminality. Consecutive sentences are also appropriate in cases where the offences are distinct and involve "an aggravating element that requires separate recognition."
34. This appellant's offending cannot realistically be viewed as a single incident. It was, in one sense, a series of offences but it involved three different kinds of offence; it took place over a period of some 24 hours in distinct phases and at various different locations; it involved no fewer than 11 separate individual victims; some of the offences were themselves racially aggravated, whilst others were aggravated by accompanying racial or sexual insults. The sentencing judge was entitled to approach the case as involving several distinct groups or clusters of offending for which some degree of consecutive sentencing was appropriate. We can see no error of principle here. Indeed, we note that this court has previously approved a similar approach to sentencing a comparable series of offences: see R v Greaves [2023] EWCA Crim 1764 at [1], [28] and [29].
35. The third stage of the general approach to totality is for the court to "test the overall sentence against the requirement that the total sentence is just and proportionate to the offending as a whole". Ordinarily, this will involve adding up the individual sentences and then considering whether a downward adjustment is required to ensure that the aggregate is just and proportionate. The downward adjustment may be achieved by reductions in sentence or by making some sentences concurrent or by a mixture of the two. Here the judge applied the principle of totality by making some of the sentences concurrent. The remaining question is whether the way in which he did so gave sufficient effect to the overarching requirement of the totality principle.
36. This was a sequence of serious offences against multiple victims, each offence being considerably aggravated by the factors identified by the judge. Apart from his age and a degree of immaturity, the appellant could offer very little indeed by way of mitigation. He had shown himself resistant to the determined efforts of probation to help him turn his life around. His response to sentences of detention had involved offending during the sentence. It is clear that a substantial further period of custody was merited and no fewer than 10 of the offences carried a statutory maximum of two years. It was proper and fitting , as we have said, to impose a degree of consecutive sentencing.
37. All of this said, and standing back, we have been persuaded that a notional sentence after a trial of 36 months' detention was considerably beyond what was just and proportionate for this offending by this young offender.
38. In our judgment, the least sentence that could be imposed before reduction for plea was one of 27 months' detention. Giving full credit for the guilty plea we arrive at a total period of detention of 18 months. We implement that conclusion by quashing the sentences on counts 2 and 7 and substituting the same periods of detention, concurrent rather than consecutive. In addition the sentence of four months' detention in a young offender institution on charge 10 will now be consecutive to the sentence on charge 6 and not, as originally stated, consecutive to the sentence on charge 7.
39. Having taken these steps, we are able to correct a technical oversight in the court below by imposing the mandatory surcharge in the sum of £187.
40. To the extent that we have indicated, the appeal is allowed.