Downing, R. v

When sentencing linked violent offences, the custodial term must reflect the overall seriousness of the offending. A court must take proper account of all material aggravating features, including the use of a weapon, domestic context, multiple victims, vulnerability, relevant previous convictions and the intended harm.

A sentence should not be reduced solely because an offence is charged as an attempt where the applicable guideline category and starting point are unchanged. Prosecutors should ensure that charges properly reflect the conduct and should identify all aggravating features for the sentencing judge.

The offender pleaded guilty at Middlesbrough Crown Court to assault occasioning actual bodily harm against his partner and attempting to cause really serious bodily harm with intent against her 16-year-old son. While intoxicated, he used a knife against both victims and repeatedly slashed at the boy’s face.

The judge imposed concurrent sentences, including an extended sentence of eight years on the attempted offence, comprising four years’ custody and four years’ extension. The Attorney General referred the custodial term as unduly lenient. The issue was whether it adequately reflected the seriousness of the overall offending.

1. The Attorney General’s reference was allowed. The custodial term of four years on count 2 was unduly lenient and was quashed. It was replaced with a custodial term of seven years, with the four-year extension period retained.

2. The court accepted the sentencing judge’s guideline categorisation, the finding of dangerousness and the length of the extension period. However, the sentence failed to reflect the cumulative seriousness of the assault on the partner and the attempted infliction of really serious harm on her son.

3. There were numerous aggravating features. Both victims were threatened or injured with a knife in their home; the child victim was vulnerable; the offender’s young children were present; and the offender had a serious record of violent offending, including offending in breach of licence. The intended harm to the child was much greater than the injuries ultimately caused because he defended himself.

4. The judge also erred in reducing the sentence because count 2 was charged as an attempt. The conduct could and should have been charged as wounding with intent to cause grievous bodily harm. In any event, the applicable categorisation and starting point would have been the same, and completion of the intended harm could have placed the offence in category 1.

5. The least appropriate pre-credit sentence was ten and a half years. After full one-third credit for the guilty pleas, seven years’ custody was imposed. The court further observed that charges should sensibly reflect the offending and that prosecuting counsel should identify all aggravating features.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36, the court held the custodial term unduly lenient, quashed it and substituted seven years’ custody with a four-year extension period: [2017] EWCA Crim 817.

• Middlesbrough Crown Court: On 13 March 2017, the offender received concurrent sentences, including an extended sentence of eight years for attempting to cause really serious bodily harm with intent, comprising four years’ custody and a four-year extension period.