R v Wayne Anthony A'Hearne

Category 1 harm under the Sentencing Council Guideline for Attempted Murder requires either lifelong dependency on third-party care or medical treatment, or a permanent and irreversible injury or psychological condition with a substantial and long-term effect on normal day-to-day activities or work. Sentencers must not assume a long-term prognosis without a secure evidential basis, particularly soon after the offence. Even where harm falls within Category 2, severe injuries, lasting psychological consequences, culpability and aggravating features may justify a sentence at or above the applicable range. A factor used in assessing culpability, such as weapon use, should not be counted again as an aggravating factor, although other aggravating features may sustain the sentence.

Following a trial, the applicant was convicted of attempted murder and sentenced to an extended determinate sentence of 33 years. He renewed applications for leave to appeal against conviction, challenging the admission of hearsay and bad-character evidence and the refusal to discharge the jury. He also challenged sentence, arguing that the trial judge had wrongly categorised the harm as Category 1 and had double-counted aggravating factors. The central sentencing issues were whether the evidence established permanent and irreversible harm and whether the sentence was manifestly excessive.

1. The renewed application for leave to appeal against conviction was refused. The hearsay evidence concerning the applicant's admissions was admissible under the applicable gateways in the Criminal Justice Act 2003. The judge correctly applied the multiple-hearsay test, using the statutory factors as guidance, and the jury received an adequate caution. There was no arguable error of law.
2. The admission of the applicant's old convictions for wounding with intent as bad-character evidence also disclosed no arguable error. The judge had considered their age, the applicant's long and regular history of violence, and the statutory exclusion powers. The late disclosure did not require discharge of the jury because the defence could use it in submissions and it did not undermine the basis on which the hearsay evidence had been admitted.
3. Leave to appeal against sentence was granted. Category 1 harm under the Guideline requires lifelong dependency on medical treatment, or a permanent and irreversible injury or psychological condition having a substantial and long-term effect on ordinary activities or work. The evidence, obtained only seven months after the attack, did not provide a secure basis for finding permanence or irreversibility. There was no long-term prognosis for the physical injuries, and improvement in the psychological condition remained possible. Courts must not assume long-term prognoses without secure and satisfactory evidence. The court relied on R v Jones [2021] EWCA Crim 1139, [2021] Cr App R 36 and R v Yasin Sati [2021] EWCA Crim 85 as examples of that approach.
4. The error did not make the sentence excessive. Even if the harm was Category 2, it was at the upper end. The life-threatening injuries, continuing psychological consequences, elements of high culpability and numerous aggravating features justified a sentence of at least about 25 years and a sentence outside the Category 2 range. The use of the axe should not have been counted again as an aggravating factor because it had already contributed to culpability, but the applicant's extreme record, the domestic setting, drug use, attempted removal of money and disposal of evidence provided ample remaining aggravation.
5. The 30-year custodial term and three-year extended licence period were severe but not manifestly excessive. The sentence appeal was dismissed.

1. Court of Appeal (Criminal Division) — The renewed application for leave to appeal against conviction was refused. Leave to appeal against sentence was granted, but the sentence appeal was dismissed: [2022] EWCA Crim 1784.
2. Crown Court — Following trial, the applicant was convicted of attempted murder on 19 December 2021 and sentenced on 23 December 2021 to an extended determinate sentence of 33 years.