R v Emanuele Kshatriya

A sentence is unduly lenient where it falls outside the range that a judge who considered all relevant factors could reasonably regard as appropriate. For an attempt to cause really serious harm, the court should first assess the sentence for the completed offence and then make an appropriate, usually fact-sensitive, reduction because the harm did not occur.

Serious, prolonged violence against a defenceless victim may retain high culpability despite a mental disorder where the disorder did not affect the offender’s conduct. Where the overall offending and risk establish a significant risk of serious harm from further specified offences, an extended determinate sentence may be necessary to protect the public.

The Solicitor General referred as unduly lenient a total sentence of 30 months’ imprisonment imposed at Snaresbrook Crown Court for attempting to cause grievous bodily harm, assault occasioning actual bodily harm, perverting the course of public justice and theft.

The most serious offence arose from a prolonged attack on a taxi driver, including repeated stamping on his head and chest while he was on the ground. The other offences included an assault on the offender’s former partner and a sustained attempt to persuade her to give a false account to the police.

The central issues were whether the sentencing judge had used the correct guidelines and facts, whether the total sentence was unduly lenient, and whether the offender posed a significant risk of serious harm requiring an extended determinate sentence.

1. The court granted leave for the Attorney General’s reference and held that the total sentence was unduly lenient. Applying the test stated in Attorney General’s Reference No 4 of 1989 [1990] 1 WLR 41, the sentencing judge had failed to take account of relevant factors and the resulting sentence fell outside the permissible range.

2. For the attempted grievous bodily harm offence, the judge had wrongly used the guideline for an offence contrary to section 20 of the Offences Against the Person Act 1861. The applicable approach, explained in Laverick [2015] EWCA Crim 1059 and Muthuraja [2019] EWCA Crim 1740, required the court to assess the sentence for completed grievous bodily harm with intent and then make a reduction for the fact that really serious harm did not result.

3. The attack involved high culpability. It was prolonged, involved repeated stamping on a defenceless victim’s head and chest, and was aggravated by offending on bail, previous violence, public-service victimhood and racial hostility. The offender’s post-traumatic stress disorder did not reduce culpability because there was no reasonable perception of threat during that part of the attack. A completed Category 3A offence would have attracted at least six years’ custody, with only a modest reduction for attempt.

4. The court corrected the assessment of the assault on the former partner. It was a short-lived, spontaneous assault after she struck the offender with a lamp, properly falling within Category 2C. Substantial aggravating features justified a sentence at or slightly above the category range. The perverting-the-course-of-justice offence was also serious: it was a sustained effort to induce a witness to alter her account and warranted a consecutive sentence before totality.

5. The offender’s escalating violence and the risk of grave future harm established a significant risk of serious harm from further specified offences. Public protection required an extended determinate sentence. The court quashed all sentences except that for theft and imposed a nine-year extended determinate sentence for the attempted grievous bodily harm offence, comprising six years’ custody and three years’ extended licence. Sentences for assault and perverting the course of justice were imposed concurrently to reflect the totality of the offending.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the total sentence unduly lenient, quashed the sentences for all offences except theft, and imposed an extended determinate sentence: [2024] EWCA Crim 735.

• Crown Court at Snaresbrook: On 23 February 2024, the offender received a total of 30 months’ imprisonment for attempting to cause grievous bodily harm, assault occasioning actual bodily harm, perverting the course of public justice and theft.