McGarrick, R v

On a challenge to part of an aggregate sentence, the appellate court must review the sentence as a whole. An offender cannot treat an unchallenged component as fixed while appealing a discrete consecutive term.

The enhanced maximum under Assaults on Emergency Workers (Offences) Act 2018 reflects Parliament’s intention that assaults on emergency workers acting in the course of their duties receive more severe sentences than ordinary common assault or battery. Earlier guidelines for offences with lower statutory maxima cannot simply be adopted with an uplift. Where no applicable guideline exists, sentence must remain just, proportionate and commensurate with the seriousness of the offending.

The applicant pleaded guilty in the Crown Court at Wolverhampton to fraud by false representation and assault by beating an emergency worker. He had sought to defraud a 97-year-old former customer and, when police officers attended, resisted arrest and deliberately struck an officer in the face. The officer suffered pain, minor injuries and marks from the ensuing struggle.

On 13 February 2019, the Crown Court imposed nine months’ imprisonment for fraud and four months’ imprisonment consecutively for the assault, making 13 months in total. The application for leave to appeal challenged only the assault sentence as excessive. The central issue was whether the four-month consecutive term, based on a six-month notional sentence after trial, made the overall sentence manifestly excessive.

1. Leave to appeal was refused. The court was not persuaded that the sentencing judge erred in imposing a four-month consecutive sentence for assault by beating an emergency worker, or that the total sentence of 13 months was manifestly excessive.
2. The court applied the principle in R v Hyde [2016] EWCA Crim 1031 that a sentencing appeal requires review of the sentence as a whole. The applicant could not leave the fraud sentence unchallenged and appeal the consecutive assault term in isolation. The fraud sentence might itself have been higher but for totality.
3. Assaults on Emergency Workers (Offences) Act 2018, section 1, created an exception to the ordinary six-month maximum for common assault or battery by providing a 12-month maximum for assault or battery against an emergency worker acting in that capacity. Parliament had therefore intended a more severe sentencing regime. Guidelines for common assault, battery, or assaulting a police officer under an earlier and lower-maxima regime could not simply be read across with an uplift.
4. In the absence of an applicable guideline, the governing requirements were that sentence be just, proportionate and no more than commensurate with the seriousness of the offending, while giving effect to that legislative purpose. The court accepted that the Sentencing Council’s harm-and-culpability structure could assist. The harm was greater rather than trivial, and culpability was high because the violence was deliberate, determined, premeditated and sustained.
5. The assault crossed the custody threshold. It was separate and distinct from the fraud, so a consecutive sentence was proper in principle. Despite the limited physical injury, the applicant deliberately struck an officer during resistance to a lawful arrest, had a very serious relevant record, and had no mitigation apart from credit already given for his guilty plea. A six-month notional sentence after trial was therefore proper.

• Court of Appeal (Criminal Division): Refused leave to appeal against sentence: [2019] EWCA Crim 530.
• Crown Court at Wolverhampton: On 13 February 2019, imposed nine months’ imprisonment for fraud and four months’ imprisonment consecutively for assault by beating an emergency worker, making 13 months’ imprisonment.