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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 >> Hannan, R v [2017] EWCA Crim 2503 (06 December 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/2503.html Cite as: [2017] EWCA Crim 2503

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		6 December 2017

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

1. MR JUSTICE KERR: On 9th March 2017 in the Crown Court at Lewes before His Honour Judge Kemp, the appellant pleaded guilty to one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 and to two counts of damaging property, contrary to section 1(1) of the Criminal Damage Act 1971. On 17th March 2017 he was sentenced by Her Honour Judge Waddicor to a five-year extended sentence for the assault occasioning actual bodily harm (a custodial term of four years and a one year licence period). He received sentences of two months concurrent and one month concurrent for the two criminal damage offences. The total sentence was therefore an extended sentence under section 226A of the Criminal Justice Act 2003 of five years, comprising a custodial term of four years and an extension period of one year. A victim surcharge order was made in the sum of £170. The appellant was made subject to a restraining order under section 5 of the Protection from Harassment Act 1997 indefinitely. No evidence was offered against him on count 2, sexual assault, and a not guilty verdict was entered pursuant to section 17 of the Criminal Justice Act 1967. A further charge alleging a summary offence of using violence to secure entry was withdrawn by the prosecution. The appellant appeals against sentence by leave of the single judge.
2. The facts were as follows. On 14th January 2017 the complainant, to whom we shall refer as HS, was at home in bed. Her three children aged nine, six and two were also in the house. The two youngest children were the appellant's.
3. HS was in an on/off relationship with the appellant. She was sleeping downstairs in the sitting room as she was decorating her bedroom. The appellant arrived at around 1 am under the influence of drink and drugs. He was not in a good frame of mind. He had become increasingly controlling in his relationship with HS. He was paranoid that she was sleeping with other men and would routinely question her about this. He told her she could not see various friends and family. If male visitors came to the house, HS would not let them in. If the appellant's friends came to the house she would hide in the kitchen so as not to have any contact with them and avoid being accused of forming relationships.
4. On 14th January 2017, when the appellant arrived home, he got into bed with HS. He said he could smell something on the pillow. She asked if it was her shampoo, but he got angry and said: "I can smell a man." He accused her of sleeping with other men and was gritting his teeth and rocking backwards and forwards, staring at her. He tried to phone some of her male friends to accuse them of sleeping with her. No one answered and the appellant became angrier. When HS told him to stop phoning he had made around 30 calls on the house phone. He grabbed her around the face or neck on several occasions and pushed her. On one occasion he bit her on the chin leaving a red mark. The appellant, who had trained as a boxer, then punched HS five times in quick succession to the head. She covered her face with her hands and the appellant said he was sorry. Shortly after that he resumed shouting at her. He grabbed her and threw her around the house, into walls, door frames, the fridge and the dining table. She fell into the hallway hitting her head on the skirting board and injuring her shoulders and the back of her head.
5. HS tried to call the police on her mobile phone. The appellant grabbed her hand whilst she was holding the phone and squeezed so hard that the phone screen cracked and he cut his hand. He punched HS again around the head. He pulled out the phone and internet wires from the wall and broke one of the house phone handsets. He then obtained a second handset and called one of his friends. When the phone was answered HS shouted out "He's battered me", whereupon the appellant ended the call and punched her again around the head. She ran to the back door and screamed for help. The appellant pulled her back inside, ripping her nightdress. He threw her to the floor, pinned her down and threatened to tie her up. He bit her right ear. He then got up and locked the door. HS tried to suppress her screams so as not to upset the children who were upstairs.
6. The appellant then acted as if he was sorry and allowed HS to call the police. As she dialled 999 he changed his mind and took the phone from her. He then punched holes in two internal doors and punched the fridge. He threatened to kill himself by drinking head lice lotion. HS told him to stop. She then tried to leave and as she went from the kitchen into the hallway the appellant struck her from behind. She believed she was rendered unconscious. When she came to the appellant was dragging her onto the sofa. She asked him what had happened and he said he had knocked her out. He threatened to beat up the boyfriend of one of HS's friends. He left the house for a few minutes and she tried to repair the phone line so she could ring her friend and warn her. She managed to send a message to her sister to ask for help. She then hid her phone in a container on the fridge so the appellant would not find out she had sent a message.
7. The appellant then returned. He demanded that HS pull down her trousers so he could check her for the presence of another man's semen. She complied and the appellant wiped his hand across her vagina. He then smelt it and said he could smell another man's semen. This was not the first time he had behaved in such a way. He had done it on many previous occasions.
8. He eventually calmed down and went to bed. HS joined him, hoping this would calm him down. He wanted to have sex with her but she said "no" and he eventually went to sleep. The incident lasted for around three hours.
9. At about 5 am the appellant's friend came to collect him for work. The appellant did not wake up and HS then escaped and contacted the police. She subsequently went to hospital where she remained for two days.
10. The police were looking for the appellant but were unable to find him. On 7th February 2017 he returned to HS's home at around 9.00 pm. He came to the front door, wanting to see his children. HS said they did not want to see him because they were scared. She said she did not want him there. The appellant then punched a hole in the glass partition of the door so he could reach inside and unlock the door. In doing so, he cut his hand making it bleed. HS had locked the children in her bedroom. The appellant went upstairs to the bedroom and kicked the door open. He picked up his youngest child and said "goodbye", saying that he was going to prison. He then ran off before the police arrived.
11. He was arrested the following day. He gave a prepared statement denying any sexual assault and saying he did not intend to cause any damage to the house. He said the mobile phone had been damaged during an argument and he had taken it for repair. It was later recovered from a nearby mobile phone repair shop. The house phone which he had also taken was recovered from some nearby bins. He did not address the issue of any assault.
12. HS suffered bruising to her head, face, shoulders and upper body. She had a bite mark on her chin and a puncture wound on her right ear. There was a victim personal statement from her forming part of her second witness statement. She said she had only moved back to her home about a month after the attack and when she moved back she was terrified to be in her own home for herself and her children and was very worried about the experience "emotionally wrecking" her children.
13. At the sentence hearing on 17th March 2017, the court was told that about one week previously the appellant had pleaded guilty to assault occasioning actual bodily harm against HS, the mother of his children, and to two offences of criminal damage. Sentencing had been adjourned for one week. Mr Hallowes, defence counsel then appearing and appearing before us today, told the judge he understood by inference that the issue of dangerousness was not a live one. The judge however said she was considering an extended sentence on the basis that the appellant was dangerous. Mr Hallowes argued that it would be wrong in principle to consider an extended sentence given that the maximum sentence was five years and the appellant entered an early guilty plea which would normally attract a deduction of 30 per cent.
14. After setting out the facts, the sentencing judge said she found little mitigation. She accepted that the appellant had pleaded guilty at the first reasonable opportunity, but said she declined to allow 30 per cent credit for plea. The practice of reducing sentence by giving credit was set out in guidelines and the court was not constrained to follow them, she said. This was a sustained attack on a woman. The evidence against him "would have been compelling". The judge did not see any justification for departing from the five-year maximum for the offence apart from reduction for plea. This was a category 1 offence because of the vulnerability of the victim, the assaults happened in her own home late at night, there were children present and it was a sustained attack. The court did not accept the submission that the injuries were not serious in the context of the offence. They were serious in the context of assault occasioning actual bodily harm. The sentence was reduced to four years, the judge said, but this was not done to bring the sentence within the dangerousness provisions and extended sentence provisions, it was a richly deserved sentence and that which the court considered appropriate in all the circumstances including his guilty pleas. The court was satisfied that he was a dangerous offender. He posed a significant risk of serious harm to the complainant in particular. For the assault occasioning actual bodily harm he was sentenced to four years' imprisonment with one year's extended licence. She then imposed the concurrent sentences for the two criminal damage offences.
15. The first ground of appeal is that the offending and the aggravating features did not justify the elevation of the starting point beyond the top of the range by two years before the application of credit for plea. The second ground is that there was insufficient credit for the guilty pleas.
16. In his written grounds, Mr Hallowes conceded that the case was a very serious one of its type. It was accepted that applying the definitive guideline the assault occasioning actual bodily harm was a Category 1 offence with higher culpability and greater harm. That carries a range of one to three years' custody, with a starting point of one year six months' custody.
17. Mr Hallowes also conceded that the offences were aggravated by the appellant's previous convictions. Now aged 27 he had appeared before the courts on eight previous occasions for 28 offences between 2005 and 2013. In 2007 he was given a non-custodial sentence for a section 47 offence of assault occasioning actual bodily harm. In 2008 he was sentenced to 18 months' imprisonment with an extended licence of 18 months for two offences of section 20 grievous bodily harm and one of affray. In 2013 he was sentenced to 30 months' imprisonment for a section 20 grievous bodily harm offence. His other offences included multiple breaches of a curfew order, theft, criminal damage and driving offences.
18. Mr Hallowes submitted in his written grounds and in oral argument that while the judge was entitled to take a starting point above three years, the top of the range for the offence category, she was not justified in taking as the starting point the maximum sentence for the offence, namely five years. Mr Hallowes further submitted that the judge was not justified in limiting the amount of credit for the appellant's guilty plea to only 20 per cent, given that she accepted that he had pleaded guilty at the earliest opportunity. He pointed to the well-known provisions in the Sentencing Guidelines Council's Guideline on Reduction in Sentence for a Guilty Plea (applicable at the time since sentence was passed before 1 June 2017). These include at paragraph 5.1 the point that a reduction by giving credit for a guilty plea applies in the same way to a dangerous offender as to any other offender. The judge was not justified, Mr Hallowes argued, in reducing the amount of credit that should be given by reasoning that the evidence against the appellant would have been "compelling" which is not the same as "overwhelming": see paragraph 5.3 in the guideline.
19. We have come to the conclusion that the judge was fully justified in adopting five years' custody as her starting point. This was a very grave case of appalling domestic violence. The attack on 14th January 2017 was brutal and sustained, lasting about three hours. The victim was in her own home and was vulnerable. There were young children in the house. The appellant's behaviour was coercive and controlling. There was a very serious abuse of trust and power. These aggravating features referred to in the Sentencing Guidelines Council's Definitive Guideline on Domestic Violence were all present. The sentence had to demonstrate that the conduct of the appellant was unacceptable. Furthermore, the injuries were inflicted after the manner of the appellant's training as a boxer. During the assaults on 14th January the appellant made threats and tried to prevent HS from seeking help. The plea of guilty was on a "full facts" basis, including pulling down her trousers and humiliating and degrading her in the way we have described. The offending was also seriously aggravated by the appellant's bad criminal record.
20. As this court has observed, cases where the maximum sentence may be imposed are not limited to those which are the worst that can possibly be conceived. The maximum sentence for an offence may be justified if the particular case falls within the band of cases constituting the worst offending for the offence concerned and is of the utmost gravity for that type of offence: see R v Bright [2008] EWCA Crim 462, [2008] 2 Cr.App.R (S); R v Butt [2006] EWCA Crim 47, [2006] 2 CrAppR (S) 59. Moreover, this was a case where the appellant had to be sentenced for the two criminal damage counts in addition to the offence under section 47. On his return to the property on 7th February 2017 he punched a hole in the glass part of the front door to gain entry by unlocking the door from the inside. That was the second criminal damage count (count 4), thereafter terrorising HS and the children as we have described. That count could well have attracted a consecutive sentence and indeed the judge was minded to impose one but was dissuaded by Mr Hallowes, not because a consecutive sentence was undeserved but because of the way in which the dangerousness sentencing provisions operate.
21. It is well-established that the sentence imposed for a principal offence may be increased upwards to take account of the fact that lower sentences imposed for other offences run concurrently with the sentence for the main offence.
22. We also consider that the judge was justified in her decision to give 20 per cent credit for the appellant's plea of guilty rather than more. The appellant had initially relied on a prepared statement when interviewed following his arrest. In it he merely denied sexual assault and denied any intent to damage the property. The judge concluded in the appellant's favour that the pleas of guilty had been made at the earliest reasonable opportunity. The pleas of guilty to the three offences for which the appellant was sentenced were entered when he appeared by video link on 9th March 2017. They were entered on a "full facts" basis in return for the prosecution offering no evidence on the count of sexual assault and withdrawing the summary offence of forcing entry to the property. Against that procedural background, the judge was not obliged to give the appellant more than the 20 per cent credit she gave him, the evidence was overwhelming and the guideline on reduction of sentence for a guilty plea recognises at paragraph 5.4 that in such cases the reduction for a guilty plea at the first reasonable opportunity may be reduced to 20 per cent. The judge's comment that the evidence against the appellant was compelling was a fair one. We think her decision to limit the credit to 20 per cent was one which she was entitled to reach and we decline to interfere.
23. For those reasons the appeal is dismissed.

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