Healey, R. v

For sentencing an assault occasioning actual bodily harm under the Offences against the Person Act 1861, “greater harm” requires injury serious in the context of that offence or an attack involving persistent repetition. A brief attack involving several blows may fall short. The fact that it would have continued but for intervention concerns culpability, not harm.

Even where the offence belongs in the lower harm category, multiple distinct culpability and seriousness factors may justify a substantial upward adjustment. A guilty-plea reduction may be halved, and reduced further where a rejected account requires witnesses to give evidence. Prison conditions during Covid-19 may inform sentence length, but appellate intervention remains limited where the sentence is neither wrong nor manifestly excessive.

The applicant pleaded guilty at Snaresbrook Crown Court to assault occasioning actual bodily harm and affray. After a Newton hearing, the Recorder found that he had carried out a wholly unprovoked, hostility-motivated attack and sentenced him to 32 months’ imprisonment for the assault, concurrent with 10 months for affray.

The Recorder placed the assault in category 1 of the sentencing guideline, applied a reduced credit for the guilty plea, allowed a reduction for Covid-19 prison conditions, and considered personal mitigation. The applicant renewed his application for permission to appeal against sentence on five grounds concerning harm, culpability, guilty-plea credit, the pandemic reduction and mitigation. The central issues were whether the offence belonged in the category 1 harm bracket and whether the resulting sentence was wrong or manifestly excessive.

The court granted permission to appeal but dismissed the appeal. The sentence of 32 months’ imprisonment remained in force.

1. Harm. The court held that the injuries, though unpleasant, were not serious injury in the context of an assault occasioning actual bodily harm. The guidance on “sustained or repeated” attacks requires some degree of persistent repetition. This short, frenzied attack came close to being sustained, but did not satisfy that description. The possibility that it would have continued but for intervention was relevant to culpability rather than harm. The assault should therefore have been placed in category 2, not category 1.
2. Culpability and seriousness. The statutory aggravating factor arising from hostility based on sexual orientation placed the offence in the higher culpability range. There were also distinct additional factors: the use of a shod foot, the applicant’s leading role, deliberate infliction of more harm than necessary, his record for violence or disorder, the nighttime public setting, the presence of others and the enduring effect on the victim. These factors justified a very significant upward adjustment to a three-year adjusted starting point. The court found no impermissible double counting because the additional matters independently justified the sentence. R v Grant Smith [2015] EWCA Crim 1482, R v Xue [2020] EWCA Crim 587 and R v Jordan Lee Smith [2020] EWCA Crim 1427 informed the assessment.
3. Guilty-plea credit. Paragraph F2 of the relevant guideline supported halving the ordinary reduction after the applicant’s account was rejected at the Newton hearing, with a further reduction justified because the victim gave evidence. Reducing the credit from 12.5% to approximately 5% was not an error.
4. Covid-19 conditions. Following R v Manning [2020] EWCA Crim 592, prison conditions could properly be considered when determining the length of custody. The two-month reduction was an appropriate exercise of discretion. The case was serious and far from the cusp of suspension.
5. The Recorder had considered the personal mitigation. Given the Recorder’s assessment after the Newton hearing, the sentence was neither wrong nor manifestly excessive.

• Court of Appeal (Criminal Division) — Permission to appeal was granted, but the appeal against sentence was dismissed. [2021] EWCA Crim 181.
• Snaresbrook Crown Court — Following a Newton hearing, the Recorder sentenced the applicant on 24 July 2020 to 32 months’ imprisonment for assault occasioning actual bodily harm, concurrent with 10 months for affray.
• Single judge — Permission to appeal was refused. The applicant renewed the application before the Court of Appeal.