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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 >> Brown, R. v [2023] EWCA Crim 1197 (04 October 2023) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2023/1197.html Cite as: [2023] EWCA Crim 1197

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		4th October 2023

Wednesday 4^th October 2023

LORD JUSTICE STUART-SMITH: I shall ask Mr Justice Choudhury to give the judgment of the court.

MR JUSTICE CHOUDHURY:

1. On 9^th January 2023, following a trial in the Crown Court at Croydon before Mr Recorder Irwin and a jury, the applicant (now aged 23) was convicted of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861.
2. On 10^th March 2023 he was sentenced by the Recorder to eight years' detention in a young offender institution.
3. The applicant now renews his application for leave to appeal against sentence, following refusal by the single judge.
4. The facts may be briefly summarised. The applicant lived with his mother, Lavinia Phillips at an address in Bromley. His mother had previously been in a relationship with the victim, Ashley Davis.
5. On 29^th October 2021, Mr Davis went to Ms Phillips' home to collect some belongings. Upon arrival, an argument developed between Mr Davis and Ms Phillips as to the whereabouts of a mountain bike which he believed belonged to him. Ms Phillips called the applicant, who was not at home at the time, and told him what was happening. The applicant immediately drove home. He had with him a lock-knife.
6. The applicant's arrival heightened tensions further. The applicant was described as being aggressive and seeking to intimidate Mr Davis. The applicant produced the knife, but despite being told by his mother and his grandfather, who was also present, to put it away, a scuffle ensued between the applicant and Mr Davis, during which Mr Davis was stabbed twice in the lower abdomen. The applicant then left.
7. Mr Davis was seriously wounded. He was assisted by a neighbour who acted quickly to stem the bleeding. The injuries were such that Mr Davis' intestines were left protruding from his abdomen. Mr Davis spent a week in hospital and had to have his spleen removed. He is now on life-long medication and suffers ongoing effects, both physical and mental, as a result of his injuries.
8. The Recorder rejected a submission that the offence fell into category 1B. Instead, he concluded that there was high culpability category A, and category 1 harm. The starting point for a category 1A offence for an adult is 12 years' custody, with a range of ten to 16 years. The Recorder did not find the applicant to be dangerous. He went on to apply a substantial discount on account of the applicant's relative youth (19 at the time of the offence) and good character.
9. Leave to appeal is sought on the grounds that the offence ought to have been placed in category 2B, rather than category 1A; that the Recorder should have paid greater regard to the applicant's mitigation; and that the sentence was in all the circumstances manifestly excessive.
10. In refusing leave, the single judge said as follows:

"The applicant stabbed the victim twice in the abdomen with a knife, which the sentencing guideline expressly recognises can be a highly dangerous weapon ('(a) highly dangerous weapon can include weapons such as knives and firearms'). That meant it was within the judge's discretion to place the offence in the high culpability bracket (A). These were life threatening injuries. The victim was recorded as having 'sustained two penetrating injuries to the lower right side of his anterior abdomen (right iliac fossa) out of which (his) bowel was protruding (evisceration). He had been unstable with the pre-hospital team so he had received one unit of blood by transfusion and one pack of Fresh Frozen Plasma (clotting proteins) as well as tranexamic acid to help stabilise any clot he may produce, which is standard practice in patients suspected to be bleeding heavily'. In the resuscitation room the victim demonstrated the signs of catastrophic haemorrhage; his liver was bleeding (this was cauterised) and his spleen needed to be removed to prevent further bleeding. On any sensible view, without the assistance he received at the scene and the effective medical care which was administered by the emergency services and the doctors in surgery, the victim may easily have died. Moreover, the injuries were particularly grave, not least because of their consequences. As the victim has described in his first impact statement:

'Physically the whole left side of my chest is very numb, my belly button is often bleeding and is very sore. The surgery required a large cut from the top of my abdomen to the bottom of my abdomen which is longer than a 30 cm ruler. I had a drainage hole put in my left side by the ambulance crew when they attended me when I was stabbed. I have two stab wounds to the right side of my belly button where my bowels came out. I have constant pain moving, I bleed so much that when I try to sit up it feels like it won't heal. I have problems breathing and cannot inhale a deep breath. I sneezed the other day and was in tears; it felt like I had been hit in the belly with a baseball bat. Going to the toilet is extremely painful and I have had one square meal since the incident due to the pain. I have no energy and have lost over a stone since the incident which was less than two weeks ago. I am having to use laxatives and suppositories to help me go to the toilet. The surgery required me to have my spleen removed, which requires me to have medication for the rest of my life. I had to have injections as this has damaged my immune system and have an emergency pack of antibiotic in case, I become very ill or infected. I am on painkillers, and medications include nine tablets a day as I have developed pneumonia, which causes further problems with me going to the toilet. I am having to lay down a lot as my core is in pain and weakened.'

(The damage to the victim's core, in particular, is set out in greater detail in the second impact statement.)

This placed the offence in category 1 harm.

A category 1A offence has a starting point of 12 years and a range of ten to 16 years. Following a trial, the judge, taking into account the applicant's age and strong mitigation, went significantly below the category range to eight years.

This was not a manifestly excessive sentence. To the contrary, for these life-threatening injuries following an earlier incident when the applicant had confronted the victim with a sword, this was a merciful sentence, reached by the judge at the conclusion of very careful sentencing remarks."

11. Having reviewed the matter afresh, we agree with the single judge that the injuries inflicted could easily have led to the victim's death; as such, they were life-threatening. It is wholly unarguable that the harm ought to be placed in anything other than category 1.
12. As for culpability, the express reference in the guidelines to a knife as an example of a highly dangerous weapon precludes any sensible argument that a lock-knife capable of causing the injuries that it did was not such a weapon. We note that courts have repeatedly emphasised the seriousness of carrying a knife when committing a crime. By way of example, it was said in Attorney General's Reference (No 49 of 2008) [2008] EWCA Crim 2034 that:

"Those who carry knives in the street and use them to wound must expect severe punishment – no ifs, no buts, no perhaps."

13. We are satisfied that the carrying of a knife does place the offending in category A for culpability. However, there is a range within that category. We note that a small lock-knife, whilst highly dangerous if used with intent to injure, is not as offensive or intrinsically dangerous as a large machete or a zombie knife – weapons which are commonly involved in knife crime these days and whose only real purpose is to maim or kill. We consider that, in the particular circumstances of this case, the size and nature of the knife are factors that warrant the placement of the offending at the lower end of the range for a category A offence. This leads to a notional sentence of 10 years' custody before reduction for plea and/or other matters, rather than the 12 years adopted by the Judge, which was in the circumstances manifestly excessive.
14. Applying the reduction of one-third applied by the Recorder to that reduced notional sentence of 10 years on account of the applicant's youth and good character, produces a sentence of 6 years and 8 months' custody.
15. Accordingly, we quash the sentence of 8 years detention in a Young Offenders Institute and impose instead a sentence of 6 years and 8 months detention.
16. To that extent, this appeal against sentence is allowed.
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