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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hutchinson, R. v [2017] EWCA Crim 1283 (04 July 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/1283.html Cite as: [2017] EWCA Crim 1283

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 4 July 2017

1. MR JUSTICE HOLROYDE: On 8 July 2016 at the Central Criminal Court after a trial before Mr Recorder Fortune QC and a jury, this applicant was convicted on count 1 of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, and on count 2 of common assault contrary to section 39 of the Criminal Justice Act 1988. On 5 August 2016 the applicant was sentenced by Mr Recorder Fortune to consecutive terms of 3 years' imprisonment and 6 months' imprisonment. His applications for leave to appeal against conviction and sentence were refused by the single judge, May J. Both applications are now renewed to the full court. So far as sentence is concerned, the renewed application is presented by counsel, Mr Mason. We are grateful for his submissions, the more so because he has been good enough to act pro bono. So far as conviction is concerned, the applicant renews his application in person.
2. The facts can be summarised briefly. The victim of both offences was a Ms McCarthy, who had been the partner of the applicant for some six years. On a Friday night in January 2016 she went out with her work colleagues. In the early hours of the Saturday morning she returned to the applicant's home. He began to interrogate her about where she had been and whose company she had kept. It seems he found something on her mobile phone which attracted his suspicions. He accused her of being unfaithful. In the ensuing argument he struck Ms McCarthy in the face whilst holding her mobile phone. The result of that blow was a 35-millimetre laceration above the left eye which required four stitches at hospital. That was the subject of count 1. To the treating doctor at hospital, Ms McCarthy and the applicant claimed that the injury had been caused "play fighting".
3. After the wound had been stitched the couple returned to the applicant's home. The argument continued. In the course of it, the applicant applied his thumbs to Ms McCarthy's neck and pressed with sufficient force to obstruct her breathing for a number of seconds. Ms McCarthy's initial account was that she believed he was going to kill her. This was the common assault charged in count 2.
4. Having assaulted her in that way, the applicant left the flat, locking Ms McCarthy in and taking the keys. It was a first-floor flat, but in the end Ms McCarthy climbed out through a window. She took refuge in a neighbouring shop where she was found a short time later by the shop keeper. A 999 call which she made was played to the jury and conveyed her obvious distress. There was evidence that when the police attended she was visibly shaken and tearful. She gave an initial account that the applicant had hit her with the phone and put his hands around her neck. Her injuries were photographed. When the applicant was subsequently arrested he made no comment to all questions asked in interview.
5. Later on the day of these offences, Ms McCarthy made a witness statement describing both of them. Then on 19 January 2016, a few days later, she made a withdrawal statement. She did, however, maintain in that statement that the applicant had "shoved the phone in her face". Some weeks later, on 25 February 2016, Ms McCarthy wrote a letter to the court. She said the injury to her eyebrow was not the applicant's fault; it had been caused when she snatched the phone from him. She sought to explain her earlier and contradictory statement by saying that she was upset at the time she made it.
6. When the day of the trial arrived, Ms McCarthy attended pursuant to a witness summons. As she entered the witness box she clearly acknowledged the applicant in the dock with a friendly smile and nod. In her evidence-in-chief she reiterated her recent account that the injury above her eye had been an accident. She then added for the first time an explanation for the marks which had been seen around her neck, namely that the curtains had wrapped around her as she was climbing out of the window. Prosecuting counsel unsurprisingly made an application for the witness to be declared hostile. The application was granted in a decision for which the learned recorder gave unimpeachable reasons. No complaint is or could be made about that ruling.
7. In consequence, as the recorder in due course correctly directed the jury, the jury were entitled to consider the evidence of all of the accounts which Ms McCarthy had given, both written and oral. They were entitled to conclude that she had contradicted herself to such an extent that nothing she said could be relied upon. But they were also entitled to conclude that they were sure that her initial account was truthful, accurate and reliable, and if they did reach that conclusion they were entitled to convict.
8. At the conclusion of the prosecution evidence, which largely comprised the evidence of Ms McCarthy, a submission was made that there was no case for the defendant to answer. That submission was refused by the recorder. The trial proceeded. The applicant did not give evidence. He was convicted of both offences.
9. So far as sentence is concerned, the applicant, now aged 46, has a bad criminal record. He has been before the court on 29 occasions for a total of 72 offences. The majority of those offences involved dishonesty, but the applicant has been convicted of robbery in 1989, wounding in 1991, robbery in 1993, aggravated burglary in 1997, common assault in 2003 and possessing a knife in 2015. A pre-sentence report referred to his entrenched history of offending and assessed the applicant as posing a medium risk of re-offending. It noted that there was nothing in the probation record relating to the applicant to suggest there had ever previously been any concern about his behaviour towards any partner. The recorder in sentencing did not find the applicant to be a dangerous offender as that term is defined by the Criminal Justice Act 2003, but noted with concern the applicant's lack of insight into his actions and complete failure to accept any responsibility for his violent behaviour.
10. The recorder rightly considered the two definitive guidelines which were relevant for these purposes, namely those relating to domestic violence and assault. He accepted a submission that count 1 was a category 1 offence of its kind, for which the guideline indicates a starting point of 18 months' custody and a range of 1 to 3 years' custody. He accepted a submission that count 2 was a category 2 offence of its kind, for which the recommended starting point is a high-level community order and the range is from a low-level community order to 26 weeks' custody. He rejected a submission that the offence in count 2 should have been differently classified because the injury was not serious in the context of the offence.
11. In his sentencing remarks, the recorder identified the following aggravating features of the offence of assault occasioning actual bodily harm: first, the location of the offence in the applicant's flat; secondly, the timing of the offence after Ms McCarthy had returned there following her night out; thirdly, the ongoing effect of the assault on Ms McCarthy; fourthly, the use of the mobile phone as a weapon to cause injury; and fifthly, the fact that the applicant was subject to probation supervision at the time.
12. In relation to count 2, the recorder found four of the same aggravating features and also found a further feature, namely that the assault took place after Ms McCarthy had been treated in hospital "and after a time in which you could and should have reflected on the violence that you had caused and what you had done." The recorder was unable to find any mitigation, and there was of course no question of any credit for a plea as the applicant had denied both offences.
13. The recorder imposed sentences of 3 years' imprisonment on count 1 and 6 months' imprisonment on count 2. He ordered them to run consecutively having regard to the interval of time between them. He took into account the principles of proportionality and totality, but emphasised the seriousness of offences of violence within a domestic setting.
14. Those being the circumstances, we turn to the matters raised on appeal. So far as conviction is concerned, two grounds of appeal were advanced in writing though are no longer pursued by counsel, albeit that they are renewed to this court by the applicant.
15. The first ground is that the learned recorder was wrong to refuse the submission of no case to answer. Like the learned single judge, we regard that ground as unarguable. It cannot be argued that the jury were not entitled to accept Ms McCarthy's initial account as truthful and reliable. It was supported by her visible injuries, by her 999 call and her evident distress. True it was that she had later given contradictory accounts. However, the jury, drawing on their collective common sense and experience of life, were entitled to regard those later accounts as transparent attempts by Ms McCarthy to save her partner from the consequences of his crimes so that they could resume cohabitation. Her friendly acknowledgement of the applicant as she entered the witness box would no doubt have struck the jury as significant in this regard. Her sudden explanation regarding the curtains is perhaps unlikely to have struck the jury as carrying a ring of truth. If the jury did accept her initial account as true, there was clear evidence of guilt. In such circumstances, it would have been quite wrong for the learned recorder to accede to the submission.
16. The second written ground of appeal was a curious complaint about the layout of the courtroom. The witness box in that courtroom is positioned to the side of the jury box. It was contended in the written grounds of appeal that the jury's view of the witness was therefore impaired, with the result that they were not able to assess Ms McCarthy's evidence. An attempt was made, in our view misconceived, to rely on cases of a very different nature where, for example, the face of a witness is wholly concealed from the jury. As the single judge said, the layout of the courtroom did not preclude the jury from seeing Ms McCarthy at all, nor did it preclude them from assessing her evidence. No complaint was made at the time. In those circumstances, we, like the single judge, conclude that this ground of appeal also is unarguable.
17. As to sentence, counsel presents the grounds of appeal in this way. He submits that in relation to count 1 the recorder was in error in regarding it as so serious that a sentence at the top of the guideline range was required. Mr Mason challenges the proposition that either timing or location should properly be regarded as an aggravating factor, and also challenges the finding of an ongoing effect on Ms McCarthy. As to count 2, he submits that this was not a category 1 offence because the harm was limited to "red marks on the neck". Mr Mason submits that, again, errors were made by the recorder in identifying aggravating features. He contends that this offence did not in itself pass the custody threshold. Overall, submits Mr Mason, the total sentence was manifestly excessive. The imposition of the consecutive sentence for count 2 involved double counting of aggravating features. Moreover, he argues, the learned recorder should have taken account of Ms McCarthy's wish to resume her relationship with the applicant.
18. We have reflected on these grounds, but conclude, as did the single judge, that none of them is arguable. Count 1 was a serious example of this type of offence, committed in a domestic setting against a partner by a man with a bad record which includes convictions for offences involving violence. In referring to the timing and location of the assault as aggravating features, it seems to us that the learned recorder was doing no more than rightly making the point that Ms McCarthy went to the applicant's flat in the expectation that she would be both welcome and safe, not that she would be first interrogated and then attacked.
19. Like the recorder, we can find no mitigation for this offence. Moreover, in view of the dishonest explanation which was put forward to the treating doctor, we regard the applicant's attendance with Ms McCarthy at the hospital as an exercise in control rather than a demonstration of care for her welfare.
20. As to count 2, this offence was, in our judgment, rightly described by the recorder as taking place in circumstances of "maximum aggravation". Ms McCarthy had returned to the applicant's flat having been to hospital and received stitches for her wound, at the same time covering the applicant's back by putting forward a false explanation for her injuries. To dismiss the visible injury caused by the throttling as simply "red marks around the neck" overlooks the fact that during those seconds of throttling Ms McCarthy's breathing was obstructed. That was both a very frightening and a very dangerous act. The learned recorder was, in our judgment, plainly entitled to regard this as a case of greater harm within the sentencing guideline and was entitled to regard it as an offence which called for the maximum sentence permitted for such offences.
21. We are not able to accept Mr Mason's argument that in ordering the sentences to run consecutively the learned recorder fell into the error of double counting. He rightly treated the aggravating features of the second offence as calling for a severe sentence. He then rightly treated the interval in time between the offences as making it appropriate to order the sentences to run consecutively. Overall, in our judgment, he properly had regard to the principle of totality.
22. The total sentence of 3 years 6 months' imprisonment was undoubtedly a stiff one. In our judgment, however, it is not possible to argue that it was manifestly excessive. For those reasons, grateful though we are to Mr Mason for his submissions on the applicant's behalf, the renewed application in relation to sentence must also fail.
23. It follows that both renewed applications are refused.