Llewhellin, R. v

When sentencing a serious assault, the court must assess harm and culpability at the first step of the applicable guideline, then consider aggravating and mitigating features without double counting. Repeatedly using a knee to strike a victim’s face with intent to cause grievous bodily harm is use of a weapon equivalent and indicates higher culpability. Lack of premeditation remains relevant and may prevent automatic placement in the highest category. Offending in the presence of children, violence against a child, forcing victims from their home and alcohol-related violence may aggravate sentence. A plea entered at a plea and trial preparation hearing, rather than the first hearing, attracts 25 per cent rather than full credit. A sentence materially understating those matters may be increased on a reference under the Criminal Justice Act 1988.

The Solicitor General referred the offender’s sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. At Bristol Crown Court, the offender had received five years and four months’ imprisonment for causing grievous bodily harm with intent, with a concurrent four-month sentence for assaulting his partner’s seven-year-old daughter.

The offender repeatedly punched and kneed his partner in the face, causing a fractured jaw requiring permanent metal plates and the extraction of a tooth. The violence occurred in the presence of children. He also assaulted the child and the victims fled their home.

The sentencing judge treated the section 18 offence as Category 2, adopted an eight-year starting point, and gave full credit for the plea. The central issue was whether the proper guideline categorisation, aggravation and plea credit made the sentence unduly lenient.

1. The reference was allowed. The sentence of five years and four months for the section 18 offence was unduly lenient. It was quashed and replaced with seven years and six months’ imprisonment. The concurrent sentence for the assault on the child remained unchanged.

2. At Step 1 of the assault guideline, the offence fell between Categories 1 and 2. The repeated act of holding the victim’s head and driving a knee into her face with intent to cause grievous bodily harm was use of a weapon equivalent and indicated higher culpability. The court applied R v Andrew Michael Smith [2014] EWCA Crim. 2606, which treated use of a knee as a hard surface capable of causing weapon-like injury. The absence of premeditation indicated lower culpability, so the offence was not necessarily Category 1.

3. At Step 2, the court had to account for aggravation without duplicating the factors used at Step 1. The violence occurred in the presence of the offender’s children, and the further offence was committed against a child. The victim and her daughter were effectively forced from their home, and the offender was under the influence of alcohol. Those matters reduced the mitigating force of his role as a carer and raised the appropriate pre-plea starting point from nine years to at least ten years.

4. The court rejected an attempt to undermine the victim’s evidence by relying on her prison visits to the offender. A statement admissible under section 9 of the Criminal Justice Act 1967 had to be considered, while equivocal subsequent conduct need not be treated as undermining it.

5. Full plea credit was wrong. The guilty plea to the principal offence was entered at the plea and trial preparation hearing, after an untruthful police account portraying the offender as a victim. The appropriate reduction was 25 per cent. Taking the offences overall, the least proper sentence was seven years and six months.

• Court of Appeal (Criminal Division). On a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988, the court held the sentence unduly lenient, quashed it and substituted seven years and six months for the section 18 offence: [2018] EWCA Crim 1766.
• Crown Court at Bristol. On 16 March 2018, the court imposed five years and four months’ imprisonment for causing grievous bodily harm with intent, and four months concurrently for assault by beating.