Marsh & Anor, R v

For sentencing a section 20 wounding under the assault guideline, a category 1 offence requires both greater harm and higher culpability. A permanent visible facial scar, with psychological consequences, may amount to serious injury in the context of the offence. Culpability must be assessed in the round. Premeditation, use of a weapon and a vulnerable victim may establish higher culpability. A participant’s allegedly subordinate role is not decisive when that participant actively enables the attack.

Where an offence lies on the boundary between guideline categories, the categorisation will not affect the proper sentence if the applicable starting point is the same. A sentence within the appropriate range will not be reduced unless it is manifestly excessive.

The appellants were convicted at Isleworth Crown Court of unlawful wounding after a joint attack on a 16-year-old complainant. One co-defendant cut the complainant’s face with a key. Stokes restrained the complainant and Marsh used bolt cutters to prevent others from intervening. The injury left a permanent visible facial scar.

Marsh received two years’ imprisonment and Stokes 20 months’ detention in a young offender institution. They appealed against sentence, contending that the offence fell within category 2, rather than category 1, of the Sentencing Guidelines Council definitive guideline on assault, and that their roles were subordinate.

1. The appeals against sentence were dismissed. The sentencing judge was entitled to classify the offence as category 1 under the Sentencing Guidelines Council definitive guideline on assault.

2. The complainant’s permanent and visible facial scar, together with its psychological consequences, was serious injury in the context of a section 20 wounding. The conclusion was reinforced by the cold-blooded attack deliberately designed to cause that injury.

3. Higher culpability was established when the relevant circumstances were assessed in the round. There was some premeditation, use of a weapon and a vulnerable victim who was attacked at night while outnumbered. The precise role of each appellant could not, in isolation, decide whether culpability was higher or lower.

4. Marsh’s threatened use of bolt cutters was critical to enabling the attack. Stokes was not subordinate merely because another offender inflicted the wound: holding the complainant’s hands behind her back during the attack made her equally culpable. The judge had already allowed appropriately for Stokes’s youth and immaturity and for the appellants’ personal mitigation.

5. In any event, even if the offence had been category 2, the sentences were not manifestly excessive. The numerous factors indicating higher culpability would have placed the offence at the top of that category’s range. On the facts, the bottom of category 1 and the top of category 2 produced the same three-year starting point.

• Court of Appeal (Criminal Division): Appeals against the sentences imposed following convictions at Isleworth Crown Court were dismissed.
• Crown Court at Isleworth: On 27 May 2011, the appellants were convicted of unlawful wounding. Marsh was sentenced to two years’ imprisonment and Stokes to 20 months’ detention in a young offender institution.