Neutral Citation Number: [2009] EWCA Crim 939
 
No: 200806471 A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 24th April 2009

B e f o r e:

MR JUSTICE DAVID CLARKE 

HIS HONOUR JUDGE ROBERTS QC 
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 
 
- - - - - - - - - - - - - - - -
R E G I N A 

v 

HAMAYOUN FAZLI
 
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Ms R Jurenko appeared on behalf of the Appellant
- - - - - - - - - - - - - - - -
J U D G M E N T
1.	HIS HONOUR JUDGE ROBERTS QC:  Hamayoun Fazli appeals by leave of the Single Judge against an extended sentence of imprisonment, comprising a custodial term of four years and an extension period of 12 months, which was imposed on him for an offence of assault occasioning actual bodily harm.  The appellant was aged 28 at the time of the assault.  The victim was his wife, Mrs Marghalai Fazli, who was aged 21 at that time.  
2.	The appellant was born and brought up in Afghanistan, where his father was a shopkeeper.  At the age of 16 the appellant went to live in Pakistan and at the age of 18 he came to live in this country.  He is now a British citizen.  Since he has been in the country he has worked intermittently as a delivery driver and as a dishwasher in a restaurant.  In November 2005, when he just turned 26, he married his wife in Islamabad.  It was an arranged marriage.  His wife, who must then have been just 18 years old, is from an Afghani family who had been living in Islamabad for some while.  Immediately after the marriage, the appellant brought her to live with him in the two bedroom flat in St John's Wood which he rented from a housing association.  In December 2006 Mrs Fazli gave birth to twins and in September 2007 she gave birth to another child.  
3.	According to her witness statement, to which we will refer further in due course, after the birth of the twins in December 2006 the appellant subjected her to regular physical and emotional abuse.  He would constantly criticise her for the way she kept the flat and looked after the children.  He would slap her or punch her and on one occasion he kicked her. He would say that "he had every right to beat me in order to teach me the proper manner and so that I would be able to bring up his children properly".  
4.	The appellant's wholly unacceptable behaviour towards his wife was clearly due to a combination of his cultural background and his abuse of cannabis and alcohol.  He had been a heavy user of cannabis for some while.  Some time in the spring or summer of 2006, on his return from a visit to his mother in Afghanistan, he or his baggage was searched at Dubai airport and a quantity of cannabis was found.  He was prosecuted in Dubai for possession of that and spent three or four months in prison there as a result.  That was his only criminal conviction before the ones with which we are concerned.  
5.	In February 2008, as a result of a referral by his general practitioner, the appellant was assessed by the Abbey Road Community Health Team.  He and they agreed that his primary problem was his cannabis dependency.  He was not found to be suffering from clinical depression or any other form of mental illness, though it was thought that his mood might be depressed due to his misuse of cannabis.  He appeared motivated to address his drug problem but in fact seems to have made little progress in that regard prior to his arrest.  
6.	As so often in these cases, his abuse of his wife escalated.  It culminated in a sequence of events which led to one of the neighbours calling the police on 19th April 2008.  The police attended at the appellant's flat at about midday.  Mrs Fazli was in a distressed state and gave a verbal account of what had happened.  When she removed the head scarf which she was wearing the officers saw red swelling and bruising to her face.  They arrested the appellant for assaulting her.  
7.	On the following day, Mrs Fazli made the witness statement to which we have referred, and the appellant was interviewed under caution.  He refused to accept that he had ill treated his wife in any way.  He concluded by saying:
"This is not serious.  It's not a big deal.  Everything is going to be fine.  I apologise."
8.	After consideration of the case by the Crown Prosecution Service, he was charged with four offences to which he pleaded guilty when he appeared at the Westminster Magistrates' Court on 29th April.  The Magistrates adjourned the case until 20th May for a pre‑sentence report to be obtained.  In the light of that report, they then committed the appellant in custody to the Southwark Crown Court for sentence.  
9.	The four offences were as follows.  First, there was a common assault (strictly speaking battery) on 16th April.  The facts were that at about 1.00pm on that day the appellant returned home and saw a man loitering nearby.  On entering his flat, he flew into a jealous rage and interrogated his wife, accusing her of infidelity with this man and refusing to accept her assurances that that accusation was not true.  In the course of the incident, he throttled her with a long cotton scarf so that she was unable to breathe and was close to passing out.  It was only when he saw her face that he stopped.  This took place in the living room while the children were asleep in their own room.  Mrs Fazli was understandably very distressed as a result of this incident but sustained no physical injury.  
10.	Second, there was an assault occasioning actual bodily harm on the morning of 19th April and, third, an offence of criminal damage on the same occasion.  The facts were that the appellant again interrogated his wife about her movements, flew into a rage, tore up her clothing and wedding photographs, punched her all over but mainly on the face and head, hit her on the leg with a shoe and pulled her hair.  This assault caused her multiple bruises and swelling.  The appellant then went into the kitchen and she heard him going through the cutlery drawer.  Fearful of what might happen next, she escaped by a window, in the process losing control of her bladder, which no doubt increased her distress.  She spoke to a passer‑by but the appellant appeared, told the passer‑by that everything was OK and took his wife back to the flat.  It was later that morning that the police, having been contacted by one of the neighbours, arrived.
11.	The fourth offence was an offence of possessing two small bags of cannabis, which the police found in the flat at the time of the appellant's arrest.
12.	The proceedings in the Crown Court, to which the appellant was committed for sentence, were protracted.  The case was adjourned on no fewer than four occasions for further information to be obtained before the appellant was finally sentenced on 7th November.  On that day, the facts were outlined by prosecuting counsel and the judge had before him a number of documents: pre‑sentence reports, reports from two consultant psychiatrists, a letter from the appellant, a letter from his wife and character references from four neighbours.  The judge rightly disregarded the latter as it was clear that none of the writers of the references had any inkling as to what had really been going on between the appellant and his wife.  
13.	The appellant had been in custody since his arrest and his wife had taken the children to an address of which he was unaware.  It was clear that as a result of the appellant's unacceptable behaviour the marriage was at an end.  Ms Jurenko on the appellant's behalf informed the judge that he did not seek any reconciliation with his wife, though he did wish arrangements to be made for him to see their children.  The judge, as he was entitled to do, disregarded the appellant's own letter as showing no real remorse but as being solely motivated by his desire to be released from prison.  
14.	The judge was similarly entitled to disregard Mrs Fazli's statement in her letter that:  
"Although my husband has done extremely bad things to me, I do not wish him to stay long in prison.  
I do not want my children to know that their father was in prison because of me, I also feel that he should be given another chance at least to prove himself a good father."  
15.	Statements of this kind from victims of domestic violence are frequently placed before the courts.  They are referred to in section D of the guideline issued by the Sentencing Guidelines Council setting out the overarching principles relating to cases of domestic violence.  It is worth quoting two paragraphs of that section.  Paragraph 4.1 says this:  
"4.1 As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wishes of the victim."
And paragraph 4.2 says this: 
"4.2.  There are a number of reasons why it may be particularly important that this principle is observed in a case of domestic violence:
• it is undesirable that a victim should feel a responsibility for the sentence imposed;
• there is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender;
• the risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim."
16.	In the present case, as the judge rightly observed, it appeared from her letter that Mrs Fazli had been made to feel that she would be responsible for the appellant's incarceration, whereas in truth the responsibility lay entirely with him.  Feelings of this kind on the part of the victim are a familiar consequence of controlling and intimidating behaviour on the part of the offender such as occurred in this case.  
17.	What then was the judge to do in the appellant's case?  It is clear from the transcript that he regarded Mrs Fazli as being at significant risk of serious harm from the appellant for the indefinite future and that he would have liked to pass a sentence of imprisonment for public protection.  That course was not open to him because none of the offences to which the appellant had pleaded guilty was a serious specified offence for the purposes of the relevant provisions of the Criminal Justice Act 2003.
18.	In the course of exchanges with counsel, the judge expressed surprise that the appellant had not been charged with a more serious offence which would have enabled him to pass a sentence of imprisonment for public protection.  The judge suggested that a charge of attempting to choke, suffocate or strangle contrary to section 21 of the Offences against the Person Act 1861 might have been appropriate.  However, he eventually agreed with counsel that it was too late for any new charge to be preferred and that he could only sentence the appellant for the offences for which he had been committed by the Magistrates.
19.	It was no doubt the judge's desire to afford maximum protection for Mrs Fazli for as long as possible which led him to impose an extended sentence under section 227 of the 2003 Act.  That sentence was imposed for the offence of assault occasioning actual bodily harm, which was the only one of the appellant's four offences which was a specified offence for the purpose of section 227 and for which an extended sentence was therefore in principle available.  Concurrent sentences of three months' imprisonment were imposed for each of the other three offences.  The judge properly directed that the 200 days which the appellant had spent in custody on remand should count towards his sentence.
20.	It is the extended sentence which is the subject of this appeal.  Before it could be imposed, two conditions had to be satisfied.  First, the appellant had to satisfy the dangerousness criterion, that is to say there had to be a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences.  Second, since the appellant had no previous conviction for any specified offence which would have qualified him under section 227(2)(a) for an extended sentence, he could only qualify by virtue of section 227(2)(b) if the appropriate custodial term would be at least four years.
21.	Ms Jurenko, on the appellant's behalf, submits that neither of those conditions was in fact satisfied.  We will consider them separately.  
22.	First: dangerousness.  In making his assessment of dangerousness, the judge was entitled to take into account not only the facts of the offence itself but also by virtue of section 229(2)(b) all such information as was available about any pattern of behaviour of which the offence formed part and by virtue of section 229(2)(c) any information about the appellant which was before the court.  It is now well established that "information" in this context is not limited to admissible evidence or to information which has been the subject of a criminal charge or has been tested by cross‑examination in the court.  It follows that the judge was entitled to take into account the contents of Mrs Fazli's witness statement and of the pre‑sentence reports and psychiatric reports.  The judge was fully entitled to conclude from all of that material that the appellant's attitude to women was deeply ingrained as a result of his cultural background and unlikely to be easily changed, that he showed no real understanding of the inappropriateness of his behaviour and that, especially until such time as he successfully addressed his alcohol and drug misuse, he was likely to continue once at liberty to behave in a similar way to any young woman with whom he formed a relationship in the future. 
23.	It is perhaps sufficient in this context to quote two passages from the report of the consultant psychiatrist, Doctor Kiran Patel, which was before the judge.  The report was dated 6th August 2008.  The doctor first said this: 
"Mr Fazli's personality, as indicated by his presentation at interview and other documented records, displays unacceptable attitudes and beliefs associated with the institution of marriage and the role and nature of women when compared to the social and culturally acceptable norms prevalent in the UK.  Mr Fazli made it clear at interview that he did not believe his actions in relation to the index offences should be considered criminal in any way.  He was unable to accept any responsibility for his actions or display empathy towards his wife or children.  He expressed the view that he considered himself to be the victim in this situation as he had been embarrassed and humiliated by charges being brought against him and his subsequent imprisonment."  
Later in the report, when dealing with the question of risk, the doctor said this: 
"... Mr Fazli must be considered to be at least a moderate to high risk of harm to others in the future.  This is based on his conviction for the index offences, his past history of violent behaviour, his personality make‑up and his use of Cannabis and alcohol.  The risk may be reduced if he is able to refrain from the use of illicit substances and alcohol, successfully engage in and complete an Integrated Domestic Abuse Programme (IDAP), and successfully complete other appropriate offender based programmes."
24.	The appellant did not, of course, satisfy the dangerousness requirement unless there was a significant risk not only of his committing further specified offences but of serious harm being caused to members of the public by such offences.  Serious harm is defined by section 224(3) of the Act as meaning "death or serious personal injury, whether physical or psychological" and it is now well established that a significant risk of serious harm being caused to one member of the public or to a limited group of members of the public will suffice.
25.	In view of the fact that the appellant's marriage to his current wife was clearly at an end and he was unaware of her whereabouts, it could be said that there was no significant risk of serious harm to her, but there certainly would be a risk to any other young woman with whom the appellant formed a relationship.  Would it be a risk of serious harm within the meaning of the Act?  It was true that the appellant had not in fact caused any serious harm to his wife.  In many cases where the qualifying offence is a specified offence but not a serious specified offence within the meaning of the Act and where there is no evidence that the offender has ever caused any serious harm to anyone, it may be difficult to say that there is a significant risk of his causing serious harm in the future.  But, as has often been said, the test of dangerousness looks to the future not the past, and in this case there were two factors which we think justified the judge's conclusion that there was a significant risk of serious harm in the future.  The first factor is that offences of domestic violence often escalate in seriousness.  That is what they did in this case, and the escalation was only brought to an end by the fact that one of the neighbours was sufficiently concerned to contact the police.  The second factor is that, as appears from Mr Fazli's statement, there was not one but two occasions on 16th and 17th April when the appellant throttled her with a long scarf.  Whilst no serious harm was caused on either occasion, conduct of that kind creates a real and substantial risk of death occurring.  In the circumstances, we would uphold the judge's conclusion that the dangerousness criterion was met.
26.	We turn then to the other necessary precondition for the imposition of an extended sentence: did the offence of assault occasioning actual bodily harm merit a custodial term of at least four years.  If it did not, it would be wrong in principle to increase the term so as to enable an extended sentence to be passed.  That would be true even if, as here, the imposition of an extended sentence with a four year custodial term would enable the appellant to undergo suitable courses in prison with a view to reducing the risk of further offending of the same kind.  We regard this principle as self evident.  It is identical mutatis mutandis to the principle stated by the Lord Chief Justice in paragraph 12 of the court's judgment in the leading case of R v C and others [2008] EWCA Crim 2790 when dealing with the corresponding provision relating to sentences of imprisonment for public protection.  If the dangerousness criterion is met, an offender may qualify for a sentence of imprisonment for public protection either under section 225(3)(a) by reason of having a previous conviction for a specified offence or under section 225(3)(b) if the notional minimum term is at least two years.  
27.	With regard to the threshold condition in section 225(3)(b), the Lord Chief Justice said this: 
"... courts will no doubt ensure that longer than appropriate sentences are not imposed in order to avoid the restriction created by condition 3(b). Section 153 (2) of the Criminal Justice Act 2003 remains in force, and any custodial sentence must
'... be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.'" 
28.	For the purpose of deciding what is the length of that term, as opposed to the entirely different purpose of assessing dangerousness, the court must focus on the particular office for which the sentence is to be passed or a combination of that offence and one or more other offences associated with it, and must act only on facts which are admitted or properly proved in evidence.  In that connection, a difficulty immediately becomes apparent in the present case.  The appellant fell to be sentenced for an offence to which he had pleaded guilty at the first opportunity.  The custodial term of four years which the judge imposed therefore equated to a term of six years' imprisonment following a contested trial, but the maximum sentence for assault occasioning actual bodily harm following a contested trial is five years' imprisonment so that it immediately appears that the starting point taken by the judge was significantly too high.  Furthermore, the facts of this case, though disgraceful, cannot be said to be right at the top of the range of seriousness for offences of assault occasioning actual bodily harm.  
29.	We do not think there could have been any objection to the judge aggregating the terms of imprisonment appropriate to the two offences of violence, and then passing concurrent sentences with the sentence for assault occasioning actual bodily harm being fixed so as to represent the aggregate lengths of the two terms.  The difficulty with that is that the maximum sentence for common assault is six months' imprisonment so that the maximum aggregate sentence for the two offences, following a contested trial, was five and a half years.  The appellant was entitled to a reduction of one third for his early plea of guilty, which means that the maximum aggregate sentence permissible on a plea of guilty at the first reasonable opportunity was still less than four years.  In the circumstances, we can see no answer to Ms Jurenko's submission that the second necessary pre‑condition for an extended sentence was not met.  A sentence commensurate with the seriousness of the offence would not have reached the necessary four year threshold.  
30.	In the circumstances, we propose to quash the extended sentence for assault occasioning bodily harm and to substitute in its place the determinate sentence which we consider to be appropriate to reflect the seriousness of the two offences of violence to which the appellant had pleaded guilty.  We consider that to be a sentence of three years' imprisonment.  These were serious offences and merited substantial prison sentences.  Apart from the extended sentence, for which we substitute a sentence of three years' imprisonment, the other sentences imposed by the judge will remain unchanged, as will the direction that the 200 days spent in custody on remand will count towards the sentence.
31.	In conclusion, we would add only this: we hope that this case has brought home to the appellant the seriousness with which the courts in this country view offences of this kind.  As the judge rightly said in his sentencing remarks: 
"You have chosen to reside here and, like everyone else, you are subject to all of the laws of this country, not merely those of which you might approve."
We hope that the appellant realises that, if he were to behave in this way towards any future partner and if he were to cause her any really serious injury, he would in all probability receive an indefinite sentence for imprisonment for public protection.