Tolley, R v

In sentencing for an offence of grievous bodily harm with intent, an offender’s conduct after the act causing the serious injury may establish the separate aggravating factor of an intention to cause more serious harm than actually resulted. Treating that further intention as aggravating does not amount to double counting merely because the offence is one of specific intent.

Where that factor establishes higher culpability, and greater harm is present, the offending may properly fall within Category 1 of the relevant sentencing guideline. Enhanced credit for a late guilty plea and the totality principle may then be reflected in the final sentence.

The appellant pleaded guilty at Sheffield Crown Court to assault occasioning actual bodily harm and to causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. He received consecutive sentences totalling 11 years’ imprisonment.

The serious assault followed an initial punch which caused extensive facial injuries. CCTV also showed an attempted kick towards the victim’s head or face and four further punches. The sentencing judge placed the grievous-bodily-harm offence in Category 1 of the Sentencing Council guideline and imposed 10 years for that count after allowing enhanced credit for the plea and applying totality.

On appeal, the appellant contended that the offence belonged in Category 2, that the judge had double counted intent as an aggravating feature, and that insufficient credit had been given for the late service of decisive evidence.

1. Appeal dismissed. The court held that the 10-year sentence for causing grievous bodily harm with intent was not manifestly excessive.

2. The CCTV established that, after the initial hard punch, the appellant kicked or attempted to kick the victim’s face or head while he was bent over and then delivered four further punches to his face. That conduct demonstrated an intention to inflict more serious harm than in fact resulted.

3. That finding did not double count the intent required for the offence. The intent to cause grievous bodily harm with intent was encompassed in the first punch. The later attempted kick and repeated punches supplied the additional aggravating factor of an intention to cause more serious harm than actually resulted.

4. The aggravating factor placed the offending in the higher-culpability category. Since greater-harm factors were undisputed, the court agreed, though for different reasons from the judge, that the offence fell within Category 1 of the Sentencing Council guideline, with a starting point of 12 years and a range of 9 to 16 years.

5. The judge had properly reduced a 13-year post-trial starting point to reflect enhanced credit for the guilty plea, given the late service of evidence, and the totality principle. The resulting sentence was upheld.

• Court of Appeal (Criminal Division): Sentence appeal dismissed: [2019] EWCA Crim 2058.
• Crown Court at Sheffield: Following guilty pleas, the appellant was sentenced to consecutive terms of 12 months’ and 10 years’ imprisonment, totalling 11 years.