R v Barry Rossiter

In sentencing a serious violent offence, placing the offence in a higher culpability or harm category does not by itself justify an additional upward departure from that category’s starting point. The court must assess mitigation in a balanced way before fixing the notional sentence after trial. Genuine remorse may coexist with limited insight or attempts to minimise responsibility, which may reduce its weight but does not necessarily eliminate it. A condition such as ADHD remains a mitigating feature, although deliberate failure to take prescribed medication may reduce the weight given to it. Guilty plea credit is assessed by the stage at which the plea was offered. An appellate court may substitute a lower sentence for an error of principle even where categorisation was sound.

The appellant pleaded guilty in the Crown Court at Canterbury to causing grievous bodily harm with intent and assaulting an emergency worker. The more serious offence arose from his deliberate acceleration of a car towards a police officer, causing serious physical and psychological injuries. He was also found to be dangerous.

On 11 October 2024, the Recorder of Canterbury imposed an extended sentence of 12 years, comprising 10 years’ custody and a two-year extended licence period. The appellant received limited leave to appeal against sentence, contending that the starting point was too high and that insufficient credit had been given for his guilty plea. The central issues were the proper starting point, the treatment of mitigation, and the appropriate reduction for the plea.

The appeal was allowed to the extent that the custodial element of the extended sentence was reduced to nine years. The finding of dangerousness, the use of an extended sentence, and the two-year extended licence period were not challenged.

1. The judge was entitled to place the offence in the higher culpability and harm category. The deliberate acceleration towards the officer, the officer’s vulnerability while performing police duties, and the use of the car as a highly dangerous weapon justified the culpability assessment. The previous conviction, drug use, driving without valid insurance or a full licence, the further dangerous driving, the attempt to destroy evidence, and the circumstances of the other offence provided ample justification for the harm categorisation, even if any double-counting concerning the officer’s status were ignored.
2. Once the offence had been placed in that category, the stated starting point was 12 years. The Court could not discern any justification for a further upward departure before proper credit was given for mitigation. The judge’s notional sentence after trial was difficult to reconcile with the categorisation because it appeared to require a substantial increase above the starting point before mitigation was taken into account.
3. The mitigation required a balanced assessment. The pre-sentence report recorded genuine remorse and active steps towards addressing offending, although the appellant had limited insight and minimised responsibility. The judge had treated ADHD as mitigating, but was entitled to reduce the weight given to it because the appellant deliberately failed to take prescribed medication. That did not convert the condition into an aggravating feature.
4. The guilty plea was offered approximately four weeks after the plea and trial preparation hearing, was accepted on 24 May 2024, and was made while the trial remained some way off. The appropriate reduction was therefore 20 per cent rather than 15 per cent.
5. Making the best assessment, the notional sentence after trial was 11 years. Applying the proper plea credit produced a nine-year custodial term. The resulting extended sentence was 11 years, comprising nine years’ custody and two years on extended licence.

• Court of Appeal (Criminal Division): allowed the appeal to the extent of reducing the custodial element of the extended sentence to nine years, while maintaining the two-year extended licence period.
• Crown Court at Canterbury: on 11 October 2024, imposed an extended sentence of 12 years, comprising 10 years’ custody and a two-year extended licence period.