Wells, R v

For a reckless assault causing minor, non-permanent injury, sentencing should begin with the applicable lowest guideline category rather than a category for premeditated offending. The court must then adjust for aggravating and mitigating features. Use of an air rifle capable of causing grave injury and relevant previous offending may justify custody above the guideline range, while a guilty plea attracts the appropriate reduction.

A custodial sentence for an offence under section 21(a) of the Firearms Act 1968 is unlawful where the statutory maximum is a level 3 fine.

The appellant pleaded guilty to assault occasioning actual bodily harm after firing an air rifle. The pellet lodged in the victim’s face, close to his eye. He was sentenced at Maidstone Crown Court, following committal for sentence from Ashford Magistrates’ Court, to 15 months’ imprisonment for the assault and one month concurrently for firing an air weapon beyond the premises from which it was fired.

He appealed with the single judge’s leave. The Court of Appeal considered the correct guideline starting point for an offence committed recklessly rather than deliberately, the appropriate adjustment for aggravating and mitigating features, and the lawfulness of the sentence imposed under section 21(a) of the Firearms Act 1968.

1. Appeal allowed. The court quashed the 15-month sentence for assault occasioning actual bodily harm and substituted six months’ imprisonment. It also quashed the concurrent one-month sentence for the firearms offence and imposed no separate penalty.

2. The sentencing judge had accepted, albeit with hesitation, that the appellant had aimed at a bird rather than the victim. The Court of Appeal was bound to sentence on that basis. The assault was therefore reckless, not premeditated.

3. Under the relevant Sentencing Guidelines Council Definitive Guideline, the proper starting category was that for other assaults causing minor, non-permanent injury. Its starting point was a high-level community order, with a range up to 26 weeks’ custody. The court then balanced the air rifle’s capacity to inflict very serious injury, the appellant’s significant record, and his personal mitigation. It concluded that the appropriate post-trial sentence was nine months’ imprisonment, reduced to six months for the guilty plea.

4. The offence under section 21(a) of the Firearms Act 1968 carried only a level 3 fine. The custodial sentence was consequently unlawful. A financial penalty was no longer appropriate. Although forfeiture of the air rifle and pellets could and should have been ordered below, the Court of Appeal could not now make that order.

• Court of Appeal (Criminal Division): allowed the sentence appeal and varied the sentences in [2010] EWCA Crim 405.
• Maidstone Crown Court: on 20 October 2009, following committal for sentence from Ashford Magistrates’ Court, imposed 15 months’ imprisonment for assault occasioning actual bodily harm and one month concurrently for the firearms offence.
• Ashford Magistrates’ Court: committed the appellant to the Crown Court for sentence.