Muir, R. v

A sentencing judge may exceed the top of a guideline range where the case is of particular gravity, but should give clear and compelling reasons for doing so. Multiple culpability features may justify an upward adjustment from the starting point before aggravating and mitigating features are considered.

On an appeal against sentence, the question is whether the judge was entitled to depart above the guideline threshold, or thereby imposed a sentence that was erroneous in principle or manifestly excessive. Serious injuries, a sustained assault, victim vulnerability, the presence of children, interference with contacting the police, and a closely similar previous offence may justify a substantial custodial sentence above the usual range.

The appellant pleaded guilty at York Crown Court to assault occasioning actual bodily harm and criminal damage. He received three years’ imprisonment for the assault, with no separate penalty for the damage.

The assault on his partner was sustained and caused a fractured nose, loss of hair, a swollen eye and severe symptoms requiring hospital treatment. It occurred after the appellant forced entry to the home, where children were asleep, and in the presence of others. The sentencing judge treated it as a category 1 offence and imposed a pre-plea sentence of four years because of serious aggravating features and a closely similar previous conviction.

The appeal challenged the departure above the guideline range, the length of sentence, and the refusal to suspend it.

1. Appeal dismissed. The three-year sentence for assault occasioning actual bodily harm was neither erroneous in principle nor manifestly excessive.

2. The offence was properly classified as category 1 under the Sentencing Council’s Assault Definitive Guideline. The nature of the injuries, the victim’s vulnerability and the sustained or repeated character of the attack indicated greater harm.

3. The guideline range’s upper limit of three years did not bind the sentencing judge absolutely. A departure above it required clear and compelling reasons. The guideline contemplated an upward adjustment from the starting point before aggravation and mitigation where a case of particular gravity displayed multiple culpability features.

4. Those reasons were present. The appellant violently attacked his partner after forcing entry, while children were asleep in the house and in the presence of the victim’s nephew and friends. He also sought to impede her attempt to contact the police. The offending bore striking similarities to a previous assault on a partner.

5. The judge had taken account of personal mitigation, remorse and efforts to address alcohol misuse. The aggravating features nevertheless entitled the judge to adopt a pre-plea sentence of four years, reduced to three years for the guilty pleas. Since the resulting sentence exceeded two years, suspension did not arise.

• Court of Appeal (Criminal Division): Appeal against sentence dismissed.

• York Crown Court: On 1 December 2017, the appellant was sentenced following guilty pleas to three years’ imprisonment for assault occasioning actual bodily harm. No separate penalty was imposed for criminal damage.