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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 >> Llewhellin, R. v [2018] EWCA Crim 1766 (24 May 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1766.html Cite as: [2018] EWCA Crim 1766

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London, WC2A 2LL
		24 May 2018

LORD JUSTICE SIMON:

1. This is an application by the Solicitor General to refer to this court a sentence passed on the offender, James Llewhellin at the Crown Court at Bristol on 16 March 2018 under section 36 of the Criminal Justice Act 1988 as being unduly lenient.
2. The sentence was for an overall term of five years and four months' imprisonment in respect of two offences. Count 1, causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, 64 months; count 2, assault by beating, contrary to section 39 of the Criminal Justice Act 1988, four months' imprisonment to be served concurrently.
3. The victim of the crime charged under count 1 was "K" and the victim of the assault by beating was her seven-year-old daughter "L". K had been living with the offender since August 2017 at his flat on Hillside Road in Bristol. They lived there with the offender's two sons, aged five and three. Shortly before the offences were committed, K's daughter (L) had also come to live with them.
4. On the evening of 17 December the family had been out at a local bar returning to the flat at about 9 pm. Both adults had been drinking alcohol. The offender began to ask the children whether K had been having other men at the flat. They did not answer immediately, but eventually one of the sons said "yes". K denied this and believed the answer had been given out of fear.
5. The offender immediately began attacking K, grabbing her by the hair and punching her head numerous times with his fists. He also struck her to the face using his knee - she estimated about 10 times. She screamed at him to "get off", but he continued to attack her. She went to the bedroom and pleaded with the children to tell the offender she had not had another man in the house. He came after her and continued to punch and knee her in the face. Those were the facts in relation to count 1.
6. The offender told L, aged seven, to collect her things, grabbed her by the hair and threw her into the bedroom. Those were the facts in relation to count 2. L managed to get down the stairs. K tried to retrieve her mobile telephone but the offender refused to let her have it. As she went to leave, the offender grabbed her hair and threw her down the stairs, although K managed to take hold of the banister about halfway down to stop herself from falling. The offender followed her down the stairs.
7. The offender's sons saw what took place from their open bedroom doorway. K managed to open the door and she and L fled into the street. K was bleeding from her face, head and mouth. The offender followed her and pushed her to the ground. She managed to escape with L and sought help from nearby shopkeepers who took her to a nearby public house where she worked. She reported what had taken place and the police were called.
8. Officers attending made a photographic record of the bruising to K's face and eyes which were extensive, and a bruise L's face. We have seen these photographs.
9. K was taken to hospital where she was found to have a fractured jaw that left her vulnerable to the risk of future fractures - this had to be treated by surgical insertion of permanent metal plates - as well as soft tissue injuries which had resulted in bruising, particularly around her eyes. She had to have a fractured tooth removed.
10. Officers attended the flat and arrested the offender. A blood smear and flesh scuffs were visible on the hallway walls. His clothing appeared to be blood stained.
11. He was interviewed the following day. He made a prepared but untruthful statement in which he described returning to his flat earlier the previous evening and finding a car key and a pair of shoes in the hallway which did not belong to him. He said he was hit around the back of the head as he was in the hallway and the next thing he recalled was waking up on the sofa at around 10 pm. He realised K and L were not in the property at that time. He did not remember attacking K or L. He said this was not something he would knowingly do. Thereafter he answered no comment to all questions asked.
12. The offender was charged, and his first appearance was at Bristol Magistrates' Court on 19 December 2017. There was no indication of plea. He pleaded guilty to the offence of causing grievous bodily harm with intent at the plea and trial preparation hearing on 29 January 2018. He asked the prosecution not to proceed with the charge of assault by beating to L. That request was refused and on the day of sentence the offender also pleaded guilty to that charge. Meanwhile, the case had been adjourned for preparation of a pre-sentence report until 16 March.
13. The offender had an antecedent history of eight previous convictions imposed on six previous occasions since 2007 when he was 16 years old. He had convictions for burglary, public order and possession of class A drug offences. Materially, in 2009 he pleaded guilty to two counts of battery and one count of criminal damage for which he was sentenced to a 12-month community order. The victim was his mother. In 2015 he pleaded guilty to an offence of assault occasioning actual bodily harm for which he was sentenced to a term of nine months' imprisonment. That offence had involved violence against another man who had been accused by a former partner.
14. The sentencing judge had a pre-sentence report in respect of the offender. According to this report he claimed to have no recollection of the offences because he was drunk. This made it impossible to question him directly about the offence. The author commented that during the interview it became clear that his anxieties and lack of self-confidence were at the root of his violence towards women. The offender acknowledged that the issue of the victim being unfaithful was not a reality, although he did not trust her. The writer of the report noted that the offender seemed to lack the emotional skills to raise this with her in a reasoned way. Once alcohol was consumed the underlying tensions soon erupted into something quite catastrophic. He understood all this when sober. His distress throughout interview was "quite evident".
15. The offender's resentment at the presence of the child L in the household was also evident: "It would seem that he developed a picture of L in his own mind as a troublesome and difficult child who was coming between him and her mother", although the offender acknowledged that such resentment was "wrong and irrational". The author was sceptical about the claimed loss of memory. He had shown a clear recognition that he needed to stop drinking and made full acknowledgement of his personal responsibility.
16. The report referred to his difficult upbringing and the fact that he did not have many positives from family relationships. His previous long term relationship had been characterised by conflict and had recently involved an acrimonious dispute over the care of the four children from the relationship, which resulted in his sons living with him at the time of the index offence. His records described erratic drinking and associated violence. He spoke of suffering from depression, stress and anxiety. He had previously been prescribed anti-depressants.
17. The writer of the report assessed him as posing a medium risk of re-offending and a medium risk of harm in the form of physical violence to women with whom he was in an intimate relationship. The immediate level of risk increased significantly when he drank. The author of the report realistically acknowledged that a prison sentence might be considered inevitable, but otherwise (entirely unrealistically) went on to recommend a two-year community order.
18. K made a victim personal statement dated 15 March 2018 which she read to the court. In it she described having nightmares that the offender was going to walk into her house and kill her. She described numerous situations in which she felt fear that the offender was nearby and going to hurt her. She kept having flashbacks and nightmares, imagining that the offender was going to kill her. L had been receiving counselling and had been placed in foster care because of K's fragile psychological state. K was only able to see her weekly. Because the effects to K were ongoing the plate in her jaw would remain for life. She had to have a tooth extracted. Her injuries were still visible and painful and she was still taking painkillers.
19. In passing sentence, the judge rightly described the section 18 assault as a "brutal and sustained attack" on his partner, made worse by the fact that it was done in front of small children and was followed by the assault on the child L. The judge concluded that although it was an offence of greater harm, it was one of lower culpability and was therefore an offence that fell within Category 2 of the Sentencing Council Definitive Guideline for Assault. The starting point for someone with no previous convictions for a Category 2 offence was a term of six years and with the offender's previous convictions for violence, and the fact that the offence was committed in the presence of children made the offence more serious and justified an uplift to eight years before credit for plea. The judge then gave full credit for the plea and reduced the term of imprisonment to five years and four months, with a concurrent term of four months' imprisonment for the assault by beating.
20. Miss Ledward, who appears for the Solicitor General, submits that the section 18 offence was a Category 1 offence as defined in the definitive guideline for assault. As the judge and the defence acknowledged, there was greater harm because the injuries were serious in the context of the offence. The victim K was particularly vulnerable because of her personal circumstances (the domestic situation and the presence of her child L) and there was a sustained assault on the victim. However, she also submitted that the offence was one of higher culpability because of the repeated use of a knee as a weapon to inflict the grievous bodily harm, while acknowledging that the lack of premeditation and impulsiveness was an indication of lower culpability. She submits that for these reasons the judge erred in placing the offending in Category 2. Overall it was a Category 1 offence and marked by a number of aggravating factors to which the judge gave insufficient weight. In particular, first, the offences had been committed while the offender was under the influence of alcohol; second, the violence had been inflicted in the victim's home in front of children and in the case of count 2 against a child; third, there was the ongoing effect on the victims who had been forced to leave their home, each one of which is identified as an aggravating feature under the guidelines. Finally, she submitted that it was wrong to give full credit for a plea at the plea and trial preparation hearing. It should have been 25 per cent.
21. For the offender, Mr Siva submits that the judge was right to place the section 18 assault in Category 2. Greater harm had always been accepted by the defence. We would add that he appeared to be making what we would consider a false point in seeking to rely on a number of visits made by K to the offender in prison prior to the sentencing hearing on 16 March with a view to undermining her description of the effect of the crime on her. It would have been a false point for two reasons. First, the court is bound to take into account a statement made under section 9 of the Criminal Justice Act 1967, and second, it is certainly entitled not to take into account conduct upon which the defence relies which is equivocal.
22. So far as culpability is concerned, Mr Siva accepts that the use of the knee may be treated as the equivalent to the use of a weapon - a "weapon equivalent" in the terms of the guideline. But this is only one feature of culpability. He submits that a knee is no more than a weapon equivalent than is the use of a closed fist which is not regarded as a weapon equivalent. He also points out that the prosecution had noted at the sentencing hearing that the incident "blew up from absolutely nowhere" and that lack of premeditation was a factor indicating lower culpability.
23. All these matters were matters to be weighed by the judge, some in favour and some against the offender, but they were for the judge to weigh and he weighed them.
24. Mr Siva submits that the judge was entitled to take a starting point of eight years, two years above the starting point of six years for a Category 2 offence, so as to take into account what he acknowledges were aggravating features.
25. So far as the plea is concerned, the offender had pleaded guilty to the section 18 offence at the plea and trial preparation hearing on 29 January 2018 and the court had adjourned the case for a pre-sentence report. He pleaded guilty to the section 39 offence at the sentencing hearing but that charge added little to an overall seriousness of the conduct. He is bound to accept that the offender did not plead guilty at the first hearing before the magistrates on 19 December 2017. However, he argues that this was two days after the offence took place and the appellant was in no state to enter a plea. He relies on paragraph F1 of the sentencing guidelines on reduction of sentence for a guilty plea, which make it clear that there may be particular circumstances in which an offender does not understand what is being alleged against him, which justify giving full credit where otherwise an offender would not be entitled to full credit.
26. Finally, he draws attention to the offender's responsibility as carer of his two sons at the material time. This, as he points out, is specifically identified as a mitigating factor in the definitive guideline. Overall, he submits that the sentence was merciful, but was not unduly lenient.
27. We have considered these submissions. We start with some preliminary observations. First, in relation to the culpability of the offence. The use of a weapon or weapon equivalent is described as a factor indicating higher culpability. In R v Andrew Michael Smith [2014] EWCA Crim. 2606, at paragraph 7, this court made clear that "the use of the knee is at least using it as a hard surface to inflict injury akin to harm caused by the use of a weapon." We agree. The holding of a victim's head and the bringing up of the knee into the victim's face several times (the victim estimated 10 times) with the intention of inflicting grievous bodily harm is, in our view, a factor indicating higher culpability. As the judge expressed it in the course of his sentencing remarks, "There were two sets of sustained punching and kneeing of your victim and that was followed by throwing her down the stairs." That does not mean that the offence must be characterised as a Category 1 offence, because the lack of premeditation must also be taken into account. However, in our view at Step 1 of the sentencing process the offence charged as count 1 should have been categorised as somewhere between Category 1 and 2.
28. There were however a number of aggravating circumstances which the court was bound to consider at Step 2, while paying due attention to not duplicating those factors that had placed the offence in Category 1 in the first place. First, the section 18 offence was committed in the presence of the offender's children and the offence charged as count 2 was committed against another child. This is not only a specified aggravating factor increasing seriousness, but it also reduces the weight of the argument that the offender is the carer of his children. We have been told in oral argument that he had been the carer from August to December 2017 of two of his children. He was the primary carer but not the sole carer.
29. Second, the victim and her daughter were forced to leave their home. They were effectively ejected and she was pushed to the ground once she was out of their home, with the resulting consequences for the relationship between mother and daughter. The judge did not refer to this aggravating circumstance in the course of his sentencing remarks.
30. Finally, the offence was committed while under the influence of alcohol. There was, we acknowledge, an expression of remorse but that is not uncommon in offences of domestic violence and we note that this was not the offender's first crime of violence. In our view these factors would have raised the starting point from nine to not less than 10 years before credit for plea.
31. The judge gave full credit for the plea, but in our view the offender was not entitled to full credit. He pleaded guilty to count 1 at the PTPH and he was therefore entitled to 25 per cent credit. He had in interview given the police a wholly untruthful account of how it was that the incident occurred, portraying himself as a victim.
32. Viewing the offending overall and taking into account the further offence against the child L, we consider that the least sentence that should have been passed was a term of seven-and-a-half years and the sentence passed on count 1 was unduly lenient. Accordingly, we grant leave to the Solicitor General, we quash the sentence five years and four months and substitute a term of seven-and-a-half years on count 1. The sentence on count 2 will remain unaffected.