R v Shaun Brown

When sentencing an attempt, the court must first identify the sentence appropriate for the completed offence and then make a reduction to reflect that the attempt failed. The assessment must address the harm which the offenders intended to cause, rather than the injuries which happened to result.

Repeated kicking and stamping to the head may support an inference of intended category 2 harm. A high-culpability factor of strangulation, suffocation or asphyxiation requires a deliberate act of that kind; impaired breathing alone is insufficient. Where a prosecutor’s revised approach to guideline categorisation produces a substantially longer sentence, a modest reduction may reflect the resulting unfairness.

Shaun Brown and his brother Kenneth Brown pleaded guilty at Carlisle Crown Court to attempting to cause grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861 and section 1 of the Criminal Attempts Act 1981. Each received two years’ imprisonment, suspended for two years, with unpaid-work, alcohol-abstinence and rehabilitation requirements.

The Attorney General referred the sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient. The attack involved a prolonged two-on-one assault, including repeated kicks and stamps to the victim’s head. The central issue was the correct guideline categorisation of culpability and intended harm for an attempted section 18 offence, and whether the suspended sentences were unduly lenient.

1. The court granted leave, held that both suspended sentences were unduly lenient, quashed them and substituted immediate sentences of three years and six months’ imprisonment for each offender.

2. The correct approach to an attempt was to identify the sentence appropriate for the completed offence and then discount it for the failure of the attempt. That approach was supported by R v Laverick [2015] EWCA Crim 1059 and R v Muthuraja [2019] EWCA Crim 1740. The recorder and the prosecutor below had wrongly focused on the injuries actually sustained instead of the harm intended.

3. The prolonged and persistent nature of the attack was a high-culpability feature. The court declined to find a separate high-culpability factor of strangulation, suffocation or asphyxiation because the evidence did not establish a deliberate act of that kind. The two-on-one nature of the attack was nevertheless a serious aggravating factor, and the use of shod feet was a medium-culpability weapon-equivalent factor.

4. Repeated kicking and stamping to the head supported the inference that much more serious harm was intended. The notional completed offence fell within guideline category 2A, with a starting point of seven years’ custody. After mitigation and delay, the appropriate completed-offence sentence was at least six years and six months. A modest reduction for the attempt produced six years before plea credit, and four years after full credit.

5. The court allowed a further modest reduction because the prosecutor’s change from the categorisation advanced below created an element of unfairness. Following Attorney General’s Reference (Susorovs) [2016] EWCA Crim 1856 and R v Muthuraja [2019] EWCA Crim 1740, that unfairness could properly affect the substituted sentence. Each offender was ordered to surrender to custody.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, granted leave, held the sentences unduly lenient, quashed them and substituted immediate custodial sentences.

• Crown Court at Carlisle: On 18 April 2024, Recorder Shaw sentenced each offender to two years’ imprisonment suspended for two years, with unpaid-work, alcohol-abstinence and rehabilitation requirements.