Hughes, R v

Under the pre-amendment dangerousness provisions of the Criminal Justice Act 2003, the statutory assumption of significant risk must be assessed by judicial judgment in the light of the offending, behavioural pattern and information about the offender. An escalation to an unprovoked violent attack within a continuing family conflict may justify an extended sentence where it shows a significant risk of future serious harm.

In fixing the custodial component of an extended sentence, aggravating family context does not remove the need for proportionality. A sentencing guideline which does not directly govern extended sentences may nevertheless confirm that a proposed custodial term is excessive.

The appellant was acquitted at Harrow Crown Court of wounding with intent but convicted of unlawful wounding after punching his brother in a public house. The brother sustained forehead lacerations. The sentencing judge found the appellant dangerous and imposed an extended sentence of five years under the Criminal Justice Act 2003, comprising three years’ custody and two years’ extended licence.

The finding reflected earlier violence, recent incidents arising from hostility towards the appellant’s brother and father, and the unprovoked nature of the present attack. On appeal against sentence, the appellant challenged both the dangerousness finding and the length of the custodial term.

1. The appeal was allowed in part. The dangerousness finding and the use of an extended sentence under the Criminal Justice Act 2003 were upheld. The three-year custodial term was quashed and replaced by two years’ imprisonment. The two-year extended licence period remained in force.

2. The appellant’s earlier convictions for assault occasioning actual bodily harm engaged the statutory assumption of significant risk. Applying the guidance in R v Lang [2006] 2 Cr App R(S) 3, the court held that the assumption required an evaluative judgment on the available information, including the offences, the pattern of behaviour and the offender. The continuing hostility towards the appellant’s brother, the preceding family incidents and the unprovoked attack showed an obvious risk of further violence against the brother, other family members, or persons perceived to support him.

3. The risk could amount to serious harm even though the appellant had not previously caused actual serious harm. R v Johnson [2007] 1 Cr App R(S) 112 confirmed that the absence of past harm does not automatically make the future risk negligible. Further violent offences by the appellant could well cause serious physical harm. The statutory dangerousness criteria were therefore satisfied.

4. The court added, obiter, that it would have been entitled to find dangerousness even if the risk had been confined to the appellant’s brother alone, on the basis of the dicta in R v Lang [2006] 2 Cr App R(S) 3.

5. The family context and prior related offending aggravated the unlawful wounding. However, three years’ custody for a premeditated one-punch assault without a weapon was excessive. Although the Sentencing Guidelines Council’s definitive guideline did not directly apply to an extended sentence, its range for comparable unlawful wounding confirmed that conclusion. A two-year custodial term was appropriate.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence in part. It upheld the dangerousness finding and extended-sentence basis, but substituted two years’ custody for three years.

• Harrow Crown Court: The appellant was acquitted on 12 March 2008 of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861, but convicted of unlawful wounding contrary to section 20. On 29 May 2008 he received a five-year extended sentence under the Criminal Justice Act 2003, comprising three years’ custody and two years’ extended licence.