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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 >> Lyon, R. v [2005] EWCA Crim 1365 (12 May 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/1365.html Cite as: [2005] EWCA Crim 1365

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 12th May 2005

1. THE VICE PRESIDENT: On 25th May 2004 at Snaresbrook Crown Court, following a trial before His Honour Judge Khayat QC and a jury, the appellant was convicted on both counts in the indictment. The following day he was sentenced, in relation to count 1, which was causing grievous bodily harm with intent, to 5 years' imprisonment and, on count 2, which was dangerous driving, to 1 month concurrently. He was disqualified from driving for 2 years and ordered to take an extended driving test. Following refusal of leave by the Single Judge, the Full Court, differently constituted, gave leave to appeal against sentence.

2. The facts were these. On 8th October 2003, shortly after 10.00 pm, the victim of the violence, a Mr Opanuga, having picked his wife up from work, was driving home. As he approached a roundabout, a Saab convertible tried to cut in front. Mr Opanuga sounded his horn. The driver of the Saab, who was the appellant, joined the traffic immediately behind Mr Opanuga's car. Thereafter, he repeatedly pipped his horn and flashed his lights, for a distance about half a mile. At that stage, both cars were forced to stop because traffic lights were against them. The appellant got out of his car and approached Mr Opanuga's car. Mr Opanuga also got out. The appellant went to the victim and said:

   "What do you think you've just done?"

   To which the victim replied:

   "What is your problem?"

   The appellant then head-butted the victim "like a sledgehammer", as an independent witness described it, knocking him to the floor. According to Mrs Opanuga the appellant then hit the victim several more times while he lay on the floor, and he was heard to say: "You fucking black bastard." The appellant went back to his car and drove onto the wrong side of the road, in order to navigate the car in front at the traffic lights. He left his victim unconscious on the ground.

3. The police and an ambulance were called. They took the victim to hospital, where immediate surgery was necessary, which involved planting a metal plate into Mr Opanuga's face to repair the bone structure round his eye socket.

4. Police enquiries resulted in the appellant being traced. He attended a police station on 27th October 2003, when he was arrested and interviewed. In interview he said "no comment" to all questions. He agreed to take part in an identification parade. He was picked out as the person responsible.

5. At trial it was the appellant's case that the victim had cut across in front of him, so he, the appellant, had flashed him. At the next set of lights both had got out of their cars. The appellant claimed that the victim had lifted his jumper and his hand had gone towards something which looked like a knife. The appellant was scared and head-butted the victim in self-defence, before running back to his car and driving off. He had not hit the victim more than once. The appellant's account was clearly rejected by the jury.

6. In passing sentence, it is right to say that the judge did not approach the matter on the basis that the offence was racially aggravated. He made no reference to the number of blows which were struck. But he referred to the devastating effects to the victim: he was physically scarred, his face was numb because of nerve damage and that was likely to remain permanently; he had a damaged tear duct; he suffered pain each day; he suffered from nightmares; his self-esteem was severely affected; he had depression and was unable to work. He had constant discomfort from the metal plates, which set-off any X-ray machine through which he passed.

7. The judge commented that, in the appellant's favour, he had relatively few previous convictions. That is correct. He has no previous convictions for violence and has not previously been sentenced to custody. He is now 30 years of age. There were favourable character references upon him from members of his family, friends and a business colleague who knew him. There is also before the Court a letter written by the appellant on 10th February 2005.

8. The judge said that the sentence had to be a clear one to the appellant as punishment and to others as a deterrent. This kind of behaviour would not be tolerated by society. Everyone had to share public roads and it required a certain degree of arrogance for the appellant do decide that he had the right to try to beat up someone whose driving he did not like, for whatever reason. The judge went on to pass the sentence to which at the outset we have referred.

9. There are a number of prison reports before this Court which show that the appellant has always been quiet and polite. He has achieved enhanced status. He has worked in a trusted position and he has clearly, in a variety of ways, been helping other prisoners.

10. The submission which is made by Mr Maroney, on behalf of the appellant, is that a sentence of 5 years was longer than it ought properly to have been, having regard to the character of this appellant, not solely in the sense that he has no previous convictions for violence, but also because he has, by virtue of Duke of Edinburgh Awards and otherwise, demonstrated that there is a great deal of good in him. Furthermore, by reason of his conviction and sentence, he has lost his business and other activities to which he was devoted.

11. Mr Maroney submits that there is no special category of road rage offences. The fact that an offence, contrary to section 18 of the Offences Against the Person Act, takes place in the context of road rage, demonstrates an aggravating factor in relation to the particular offence. With that submission, we agree.

12. Mr Maroney effectively submits that a sentence of the order of 4 years would more appropriately have reflected the conduct and criminality of the appellant in this case.

13. We regret that we are unable to accept that submission. Clearly the consequences for this appellant of the sentence which he is serving are serious. Equally clearly the effect of his conduct at night, on his victim, was lifelong.

14. The Full Court, when granting leave, said that they were satisfied that 5 years was a fully justified sentence. But, they said that, in Attorney-General's Reference No 88 of 2000 [2001] EWCA Crim 68, and R v Holmes [1997] EWCA Crim 1288:

    "This Court appears to have set the tariff... lower than we would have expected."

    This Court is grateful for the opportunity provided by the grant of leave to comment on those two authorities and to make some general observations about the citations of authorities on sentence appeals.

15. In paragraph 14 of Attorney-General's Reference No 88 the Court said that the section 18 offence there committed in a road rage context "ought properly to have attracted a sentence of the order of 4 years or so, following a trial." In support of that proposition, the Court referred to Attorney-General's Reference No 36 of 1996 (R v Johnson) [1997] 1 Cr App R(S) 633, in which Lord Bingham CJ at page 366 said that the appropriate sentence in relation to the facts of that case, which was not a road rage case, was "at least 4 years' imprisonment". In Holmes, the Full Court refused leave to appeal against a 4 year sentence imposed in 1996, since when road rage cases have continued to trouble the courts. It is, in our judgment, apparent that neither in Attorney-General's Reference No 88, nor in Holmes was the Court purporting to set a tariff. Neither was a guideline case. In both, the Court, in the context identified, was dealing only with the facts of the particular case. In neither case were the injuries to the victim as severe and lasting as in the present case. In neither case, it seems, were there as many blows as there appears to have been to the victim in the present case.

16. Two further points merit emphasises. First, one or two decisions of this Court, which are neither guideline cases nor expressed to be of general application, are unlikely to be a reliable guide to the appropriate sentencing bracket for a particular type of offence, because the facts and circumstances of cases vary infinitely. That is why, generally, this Court is, and will continue to be, reluctant in sentence appeals to look at cases which are merely illustrative of the sentence appropriate on particular facts.

17. Secondly, particular caution is necessary in relation to judgments given on Attorney-General References, which, unless they expressly contain statements of general application, are unlikely to identify a general sentencing level. This is because, on a Reference, in addressing the question of whether a sentence was unduly lenient, the Court is likely to focus on the least sentence which could properly have been passed in the court below, and this may not involve identifying a sentencing bracket. The Court which granted leave in the present case, were, in our judgment, right to be satisfied that 5 years was appropriate. The two authorities referred to do not suggest otherwise. The Single Judge was correct.

18. There is, it follows, no sustainable merit in this appeal which must be dismissed.