R v Shaun Russell

When jury verdicts admit more than one possible factual interpretation, the sentencing judge must determine the factual basis to the criminal standard. If no interpretation is established, sentence must be passed on the basis most favourable to the defendant. An acquittal on an offence requiring intent to cause grievous bodily harm does not necessarily establish self-defence. A separate act of aggression may justify higher culpability. Permanent loss of sight, together with its effect on daily activities and work, may constitute category 1 harm under the sentencing guideline. A restraining order may be necessary and proportionate where the circumstances show continuing conflict or a significant risk arising from the relationship and the seriousness of the injury.

The appellant was convicted at the Crown Court at Woolwich of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. He was acquitted of causing grievous bodily harm with intent, assault occasioning actual bodily harm and sexual assault. He received 42 months’ imprisonment and five-year restraining orders protecting his estranged wife and her new partner.

On appeal against sentence, he argued that the sentencing judge had relied on facts inconsistent with the acquittals, wrongly categorised culpability and harm, and imposed unnecessary and disproportionate restraining orders. The central issues were the proper factual basis for sentencing after the jury’s verdicts, the guideline categorisation of the eye injury, and the necessity and proportionality of the restraining orders.

The appeal was dismissed.

1. Factual basis for sentence. Where jury verdicts admit more than one possible interpretation, the sentencing judge must determine the factual basis to the criminal standard. If the judge is not sure of any available interpretation, the sentence must be based on the interpretation most favourable to the defendant, applying R v King [2017] EWCA Crim 128. The recorder had not expressly stated the burden or standard of proof, but there was no reason to conclude that he had applied the wrong approach.
2. Culpability. The acquittal on the count alleging grievous bodily harm with intent showed only that the jury was not satisfied as to intent. It did not establish that the appellant had acted in self-defence in relation to the eye injury. The recorder was entitled to distinguish between the appellant not initially instigating the violence and the separate, independent act of eye gouging, which he found was not defensive. Given the use of the Hoover pole, category B culpability was properly selected.
3. Harm. The evidence of loss of sight in one eye for seven months and thereafter, supported by medical evidence and the victim’s account of the effect on daily activities and work, entitled the recorder to find the injury permanent and irreversible. The possibility of further treatment and the intact optic nerve did not undermine that conclusion. Category B1 harm was therefore appropriate.
4. Restraining orders. Although the recorder’s reasons were brief, the orders were necessary and proportionate. There had been a long history of conflict with the appellant’s estranged wife. In relation to her new partner, the seriousness of the injuries and the relationship between the parties justified the order.

1. Court of Appeal (Criminal Division): dismissed the appeal against sentence on 12 April 2024.
2. Crown Court at Woolwich: convicted the appellant on 8 December 2023 and sentenced him on 12 January 2024 to 42 months’ imprisonment, with five-year restraining orders.