Fadairo v R

Under the Assault Definitive Guideline, harm must be assessed in the context of the particular offence. An injury amounting to grievous bodily harm may still constitute lesser harm for a section 18 offence. The qualification that serious injury will normally be present permits a sentencing court, after considering the guideline as a whole, to move outside the otherwise applicable category range.

That decision must take account of the non-exhaustive Step Two factors and all relevant circumstances. Exceptionally high culpability, a premeditated knife attack, intended very grave injury, offending on licence, relevant antecedents and the need for deterrence may justify an upward departure.

The appellant was convicted in the Crown Court at Woolwich of wounding with intent, contrary to section 18 of the Offences against the Person Act 1861, after stabbing a 17-year-old complainant in the face. The wound was close to the complainant’s eye but did not cause permanent functional damage.

The sentencing judge applied the Sentencing Council’s Definitive Guideline on Assault. He selected a starting point of ten years and imposed eleven years’ detention in a young offenders’ institution. The appellant contended that the injury was lesser harm, so that the case fell within Category 2 and the sentence was manifestly excessive.

The central issue was the effect of the word normally in the guideline’s references to serious injury and whether the judge could sentence outside the Category 2 range.

1. Appeal dismissed. The eleven-year sentence was permitted by the guideline. It was neither wrong in principle nor manifestly excessive.

2. The court held that the harm categories must be assessed in the context of the statutory offence. Although every completed grievous-bodily-harm offence necessarily involves really serious injury, such injury may nevertheless be lesser harm for sentencing purposes. The court accepted that greater harm, in the guideline sense, had not been caused here.

3. The word normally in the Category 1 and Category 2 definitions had to be read with the guideline as a whole. Step Two required consideration of a non-exhaustive range of offence and offender factors. It expressly allowed a move outside the identified category range. The qualification at Step One therefore allowed the judge, after considering all relevant factors, to sentence outside the Category 2 range where appropriate.

4. The judge was entitled to do so. The offence was a knife crime, and the statutory structure of section 18 of the Offences against the Person Act 1861 treated wounding with intent to cause grievous bodily harm as especially grave even if the wound did not itself amount to grievous bodily harm. Deterrence of knife crime was relevant.

5. The appellant’s culpability was exceptionally high. The attack was premeditated, committed while he was on licence, and followed relevant robbery convictions. The trial judge was entitled to find that the appellant intended to stab the complainant in the eye. The absence of permanent eye injury was fortuitous. His age was the only mitigation.

• Court of Appeal (Criminal Division). The appellant’s sentence appeal was dismissed: [2012] EWCA Crim 1292.
• Crown Court at Woolwich. The appellant was convicted of wounding with intent and sentenced to eleven years’ detention in a young offenders’ institution.