Xue v R

For the section 18 sentencing guideline, an injury is serious in the context of the offence only where it is significantly above the serious harm normally inherent in a section 18 offence. A sustained or repeated assault requires persistence or prolongation sufficient to justify the substantial increase between the category 2 and category 1 starting points; several blows during a short attack will not normally suffice.

A factor used to establish higher culpability, such as use of a weapon, must not be counted again as aggravation. Distinct features, including bringing the weapon to the scene as evidence of premeditation, may nevertheless aggravate sentence.

The appellant was convicted after trial in the Crown Court at Croydon of wounding with intent under section 18 of the Offences Against the Person Act 1861 and assault occasioning actual bodily harm. He received 12 years’ imprisonment for the wounding and a concurrent two-year sentence for the assault.

He appealed his sentence for wounding with intent. The central issue was whether the offence properly fell within category 1 of the definitive guideline, on the footing that it involved both greater harm and higher culpability, or within category 2 because it involved lesser harm but higher culpability.

1. Appeal allowed. The 12-year sentence for wounding with intent was quashed and replaced with eight years’ imprisonment. The concurrent sentence for the assault on the second complainant was unaffected.

2. The court followed the approach in R v Grant Smith [2015] EWCA Crim 1482. Although all section 18 violence is serious, category 1 requires harm significantly above the serious harm normally present in a section 18 offence. The complainant’s injuries were very serious on the scale of assaults generally, but were not sufficiently grave to amount to greater harm under the guideline. The same approach applies whether the charge is wounding with intent or causing grievous bodily harm with intent.

3. A sustained or repeated assault imports persistent repetition or an assault continuing for a significant period. That requirement must reflect the large difference between the category 1 and category 2 starting points. The multiple blade wounds, short duration, and preceding struggle made this a serious and unpleasant attack, but not one so prolonged or persistent as to be outside the norm for section 18 offences.

4. The use of a knife established higher culpability. The offence therefore fell within category 2, with a six-year starting point. Use of the weapon could not be double counted, but carrying it to the scene for the attack showed premeditation and was a separate aggravating feature. The series of blows, the attack in the victim’s home, and the presence of two victims also aggravated the offence. Allowing for previous good character and the isolated nature of the offending, the proper sentence was eight years.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted eight years’ imprisonment for the section 18 offence.
• Crown Court at Croydon: Following trial, convicted the appellant of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and assault occasioning actual bodily harm; imposed 12 years’ imprisonment for the wounding and a concurrent two-year sentence for the assault.