R v Buzz Smith

In a sentencing appeal, the appellate court may uphold offence categorisation while reducing the sentence where the overall term is manifestly excessive. Victim vulnerability due to age covers a wide range, and a young victim may fall at the lower end of that factor. Harm may be assessed by continuing behavioural effects shown in victim evidence, as well as physical injury. Serious injury and substantial impact may justify a high-harm categorisation. The totality of connected offending must be considered. A sentence which becomes eligible for suspension need not be suspended where immediate custody is necessary to mark the gravity of wholly unprovoked attacks on children.

The appellant pleaded guilty to two assaults occasioning actual bodily harm and one theft. He received a total sentence of 28 months’ imprisonment. The assaults involved attacks on two children aged 17 and 14, including facial injuries and continuing effects on the victims.

With permission, he appealed against sentence. He argued that the assaults had been placed in categories that were too serious and that any reduced sentence should be suspended. The central issues were whether the categorisations were erroneous, whether the total sentence was manifestly excessive, and whether immediate custody remained appropriate.

1. The appeal was allowed in part. The offence categorisations were upheld, but the total sentence of 28 months was quashed and replaced by a sentence of 22 months’ imprisonment.
2. For the assault on the 17-year-old victim, the sentencing judge was entitled to treat the combination of serious dental injury and substantial impact evidenced by the victim personal statement as justifying category B1. The categorisation involved no error.
3. For the assault on the 14-year-old victim, vulnerability due to age was established. That factor covered a wide range of ages, and the victim’s age placed the vulnerability at the lower end of the bracket. However, evidence that the victim had changed his behaviour, slept with a spanner nearby and altered his behaviour at school showed more than a limited impact. Category 2A was therefore properly selected.
4. Although the categorisations were correct, the overall sentence was manifestly excessive. Taking account of the lower-end vulnerability and totality, a proportionate sentence was 12 months for the first assault and 10 months for the second assault, making 22 months overall.
5. The reduced sentence was eligible for suspension, but suspension was refused. The offending comprised wholly unprovoked attacks on children, and the appropriate punishment required immediate custody.

• Court of Appeal (Criminal Division): On 9 June 2023, the appeal against sentence was allowed in part. The sentence of 28 months’ imprisonment was quashed and replaced with one of 22 months. Immediate custody was maintained: [2023] EWCA Crim 807.