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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 >> Thaker, R. v [2016] EWCA Crim 349 (15 March 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/349.html Cite as: [2016] EWCA Crim 349

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15th March 2016

1. JUDGE FARRER: Manoj Thaker is 49 years of age. His application for leave to appeal sentence has been referred to the full court by the Registrar.
2. On 11th January 2016, at a preliminary hearing before the Cardiff Crown Court, the applicant pleaded guilty to an offence of assault occasioning actual bodily harm. On 3rd February 2016 he was sentenced to eight months' imprisonment by His Honour Judge Crowther.
3. The facts of the offence are as follows. The victim of this offence was the applicant's wife, Mrs Thaker. They had been married for some 20 years, but in the five years preceding the offence the marriage had deteriorated. In the three months leading up to the attack, Mrs Thaker had been sleeping in the spare room and it would appear that communication between the parties was minimal.
4. On the night of 10th November 2015, Mrs Thaker went out and finally returned home at about 11.30 pm. That appears to have angered the applicant and the following morning, when she went into the master bedroom to put on make-up, he began to insult her. He became aggressive and threw a pair of slippers at her, which prompted her to go into the spare room with a view to calling the police. The applicant followed her and attacked her. He pushed her to the floor and knelt over her, repeatedly slapping her to the face whilst insulting her late father and forcing her to repeat those insults. She managed to push him off and got to her feet, whereupon the applicant kicked out at her, connecting with her stomach. That caused her to fall backwards and strike her head on a window sill, resulting in a wound to the back of her head.
5. By this stage the victim was upset and crying and attempted to leave the house. The applicant sought to prevent her and grabbed her, thereby ripping her vest. In an effort to placate him, she said that she would not leave the house, whereupon he went upstairs. She then managed to leave the property and, although he initially pursued her, he eventually called an ambulance.
6. In consequence of the attack, the victim suffered slight swelling and redness to both cheeks and a one-inch wound to her scalp which was closed with three staples at hospital.
7. The applicant is of previous good character. The pre-sentence report before the court noted that he took limited responsibility for his behaviour and believed that the victim had provoked him. The author commented that the applicant had worked for 23 years until February 2009, when his ill health curtailed his employment. He was assessed as representing a low risk of re-offending.
8. It is clear that the applicant is in poor health. He is diabetic and suffers from right spastic hemiplegia, which results in no mobility in his right arm and hand and limited movement in his right leg. He is presently suffering from fluid on his lungs and his blood tests are abnormal. The diagnosis is unclear, but the possibilities include malignancy or tuberculosis.
9. In passing sentence, the learned judge indicated that the victim was vulnerable by virtue of their previous emotional relationship. He found that this was a sustained attack involving a kick, which was the equivalent of a weapon. He referred to the assault definitive guideline and concluded that this was a high end category 2 assault. He proceeded to pass the sentence to which we have referred.
10. The applicant's grounds of appeal advance three submissions: (i) the nature of the attack did not justify a starting point of 12 months, which is at the top of the suggested range for category 2 offences; (ii) insufficient weight was given to the applicant's good character and poor health; and (iii) the judge failed to consider the possibility of a curfew order which could have been attached to a suspended sentence, thereby providing a measure of immediate punishment.
11. The sentencing judge rightly placed this offence in category 2 of the definitive guideline, with a starting point of six months' imprisonment and a category range of between a low level community order and 51 weeks' custody. The applicant tendered his guilty plea at the preliminary hearing and was plainly deserving of a one-third discount on the sentence which would have been appropriate after trial. It follows that a sentence of eight months' imprisonment must have involved movement to the top of the category range and a provisional sentence of 12 months' imprisonment.
12. In our judgment, even for a man of good character, the sentencing judge was entitled to place this offence at the top of category 2. This was a sustained attack upon a woman in her own home which caused relatively serious injury. The kick delivered to the victim's stomach equates to the use of a weapon. The attempts to prevent the victim from leaving the house and reporting the incident represent a further aggravating feature. It follows that a provisional sentence of 12 months' imprisonment, and a final sentence of eight months' imprisonment, was justified.
13. The applicant submits that even in these circumstances there were compelling reasons why this sentence should have been suspended. In particular, he points to his positive good character and his undoubted health difficulties.
14. The decision as to whether or not to suspend a sentence of imprisonment is a matter for the judgment of the sentencing judge. This court only interferes with that decision if it is clearly wrong or involves an error of principle.
15. In passing sentence, the learned judge commented as follows:

i. "... I have to consider whether a suspended sentence would be effective punishment for what you have done, and I am driven to the view that by virtue of your health there is no punitive condition that could be attached to a suspended sentence and accordingly, immediate custody it must be."

16. The applicant makes the point that the pre-sentence report canvassed the possibility of a curfew order being imposed at the applicant's mother's house. He submits, and we agree, that this would undoubtedly have provided a mechanism by which he could be subject to immediate and tangible punishment whilst retaining his liberty. To the extent that the judge failed to consider this option, we consider that are he fell into error.
17. This applicant is undoubtedly very unwell, and we note that since his remand to prison he has already spent time in hospital with suspected tuberculosis and is presently located on the therapeutic landing in Cardiff prison.
18. In our judgment, the applicant's continued ill health, combined with his positive good character, provided a clear basis upon which the sentence could, and in our judgment should, have been suspended. In those circumstances we conclude that the sentence passed was manifestly excessive. We grant leave to appeal and the sentence of eight months' imprisonment will be quashed and we substitute a sentence of eight months' imprisonment suspended for two years.
19. In normal circumstances it would be appropriate to attach a curfew requirement to that sentence so as to provide an element of immediate punishment. However, the applicant has been in custody for approximately six weeks following sentencing on 3rd February 2016. It follows that he has already been subject to significant punishment and in these circumstances we do not add any further requirement to the suspended sentence.
20. As a postscript, we note that the applicant should have appeared today over a live television link from prison. That live link has malfunctioned and, in circumstances where we proposed to allow this appeal, we have proceeded in his absence. This course was adopted with the consent of counsel representing the applicant today.