Poullain, R v

In sentencing for assault occasioning actual bodily harm, the seriousness of the injuries is not the sole measure of culpability. A sustained assault involving threats with a knife, fear for the victim’s life, and a clear risk of serious physical or psychological harm may justify a custodial term close to the statutory maximum.

An extended sentence may be justified where the offender presents a significant risk of serious harm to the public. Under section 227(2) of the Criminal Justice Act 2003, however, the combined custodial and extension periods cannot exceed the maximum sentence for the offence.

The applicant was convicted at Liverpool Crown Court of assault occasioning actual bodily harm after a contested trial. The assault upon his former partner was prolonged and included strangulation, repeated violence, threats, and the use of a large knife to menace her.

The Crown Court initially imposed an extended sentence of seven years under section 227 of the Criminal Justice Act 2003. It later corrected the sentence because the combined custodial and extension periods exceeded the five-year maximum for the offence. The revised sentence comprised four years’ imprisonment and a one-year extension period.

The applicant renewed his application for leave to appeal against sentence, contending that the actual injuries were relatively minor and that the sentence was manifestly excessive.

1. The renewed application for leave to appeal against sentence was refused. The revised extended sentence of four years’ imprisonment and one year on licence was proper.

2. The original seven-year extended sentence was unlawful. Section 227(2) of the Criminal Justice Act 2003 required the aggregate of the custodial term and extension period to be no greater than the maximum sentence for the offence. For assault occasioning actual bodily harm, that maximum was five years. The judge validly corrected the sentence to an aggregate of five years.

3. The seriousness of the offence did not depend upon the soft-tissue injuries alone. The court held that this was a particularly serious assault because it was sustained and vicious, placed the victim in fear of her life, and involved the applicant arming himself with a large knife and holding it to her throat. The absence of more serious injury was fortuitous, given the obvious risk of serious physical and psychological harm.

4. The four-year custodial term was therefore not manifestly excessive. The comparison with R v S Burt and others, [2006] 2 Cr App R(S) 35, did not assist because the relevant offender in that case had pleaded guilty.

5. The extended sentence was plainly justified by the applicant’s assessed high risk of serious harm, his violent antecedents, his denial of responsibility, and his lack of insight into his aggression. The court noted that the sentencing judge had used “indeterminate” when he meant an extended sentence, but the sentencing remarks made the intended sentence clear.

• Court of Appeal (Criminal Division): Renewed application for leave to appeal against sentence refused: [2009] EWCA Crim 269.

• Liverpool Crown Court: Conviction for assault occasioning actual bodily harm. The initial extended sentence was corrected from seven years to an aggregate five-year extended sentence under section 227 of the Criminal Justice Act 2003.