Abbas, R v

For assault occasioning actual bodily harm, sentence must reflect both culpability and harm. Harm includes injury intended or foreseeably capable of being caused, rather than injury actually caused alone. A single punch causing loss of consciousness may therefore justify a substantially custodial sentence where it carried a foreseeable risk of grave injury.

Offending while on bail is an aggravating factor under section 143(3) of the Criminal Justice Act 2003. Compliance with an existing suspended sentence order does not ordinarily offset that aggravation. Sentencing comparisons involving an offender with no history of violence or drunkenness may not assist where the offender has a similar prior violent conviction and other substantial aggravating features.

The appellant was convicted at the Crown Court at St Albans of assault occasioning actual bodily harm. Outside a Watford bar, while drunk, he punched the complainant once, causing him to fall, lose consciousness and sustain cuts and bruising.

He had a prior conviction for a similar assault and was on bail for that offence when he committed the present one. The Recorder imposed two years’ imprisonment. The appellant appealed against sentence, contending that it was manifestly excessive, particularly because there had been only one punch, and that his progress under a suspended sentence order should have reduced the weight of offending on bail as an aggravating factor.

1. The appeal was allowed only as to length of sentence. The court quashed the sentence of two years’ imprisonment and substituted 15 months.

2. Offending while on bail was an aggravating factor under section 143(3) of the Criminal Justice Act 2003. The appellant’s completion of some unpaid work required by the earlier suspended sentence order did not reduce or balance that aggravation. Compliance was expected as part of the punishment for the earlier offence. It might have mattered if a non-custodial sentence had remained available, but it did not.

3. The definitive assault guideline’s 12 to 36 week range for premeditated violence causing minor non-permanent injury by an offender of previous good character did not determine this case. Although the violence was not premeditated, the sentence had to reflect culpability and harm, including harm which the violence might foreseeably have caused. A punch which causes unconsciousness may foreseeably cause death.

4. Three aggravating factors justified a sentence well above 36 weeks: offending on bail; the prior, closely similar public-place assault; and the loss of consciousness caused by the punch. The appellant could not rely on Marples [1998] 1 Cr App R (S) 335 as establishing a six-month sentence. Its approach concerned an offender without antecedent violence or drunkenness, unlike this appellant.

5. Following a trial, 15 months’ imprisonment was the appropriate sentence.

• Court of Appeal (Criminal Division): By [2009] EWCA Crim 1386, allowed the sentence appeal only to the extent of quashing the two-year sentence and substituting 15 months’ imprisonment.
• Crown Court at St Albans: The appellant was convicted on 11 February 2009 of assault occasioning actual bodily harm and, on 6 March 2009, sentenced to two years’ imprisonment.