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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 >> Callow, R. v [2022] EWCA Crim 1619 (31 August 2022) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2022/1619.html Cite as: [2022] EWCA Crim 1619

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No. 202201424 A1 Royal Courts of Justice
		Wednesday, 31 August 2022

LORD JUSTICE POPPLEWELL: I will ask Martin Spencer J to give the Judgment of the Court.

MR JUSTICE MARTIN SPENCER:

1. Pursuant to leave granted by the single judge, the appellant appeals against a suspended sentence of four months' imprisonment suspended for 18 months, with an alcohol treatment requirement and a rehabilitation activity requirement for 35 days, imposed by His Honour Judge Thompson, sitting in the Crown Court at Chester on 11 April 2022 for two offences of assaulting an emergency worker and Police Officers.
2. The burden of the appeal is that the custodial sentence, even suspended, was wrong in principle, that the offences did not pass the custody threshold, and that a community order to the same effect as the alcohol treatment requirement, and the rehabilitation activity requirement, which were attached to the suspended sentence order, would be sufficient.
3. The circumstances of the offences were that at 6 pm on 9th June 2021 Police Officers Kiera Young and Francis Bowers attended an address responding to the report of a domestic incident. Upon arrival at the location a male was outside the address with two young children in a vehicle. The male stated that his wife, the appellant, was inside the address smashing the place up after consuming alcohol. He also informed the officers that the appellant had mental health issues.
4. The Officers entered the property and located the appellant in the bedroom. The story is then taken up by Police Constable Kiera Young in her statement as follows:

"We entered the property and went up to the bedroom where Callow was sat on the bed and appeared very intoxicated. The bedroom had been completely smashed up with the curtain pole ripped off the wall, the drawers destroyed, the wood scattered around the room along with clothes and other broken bits of belongings. I spoke with Callow and she sat down on the bed and started to provide me with some details calmly. Therefore, PC Bowers went downstairs with Gough to speak with him.

Callow informed me that she had been suffering with her mental health recently and as a result had started drinking. She informed me she had had a bottle of wine prior to our attendance. While informing me of this Callow grabbed on to her left dress top strap and ripped it in half with anger. During a calm conversation, Callow leapt off the bed and grabbed a broken fan from the floor and flung it across the room. I shouted for Callow to stop and sit back down and calm down. Callow then picked up a piece of wood that she had ripped from the chest of drawers and flung it towards me which caught my right forearm."

I interpose to point out that there was a basis of plea, namely that the offence was committed recklessly, and clearly that refers to the events in relation to PC Young and the flinging of the piece of wood which caught her right arm. PC Young then continued in her statement:

"I grabbed hold of Callow 'round the arms while telling her to stop and to calm down. She then stopped and walked back towards the bed. As she did this my colleague, PC Bowers, came into the bedroom and assisted me with sitting Callow back down on to the bed. Callow then leapt up towards PC Bowers and grabbed hold of his head."

PC Bowers takes up the story in his statement as follows:

"Chloe came towards me screaming and shouting and so I told her to sit on the bed and calm down. When sat on the bed, Chloe looked at me and all of a sudden she lashed out at me, punching me in the head and scratching both my face and head."

This was the subject matter of the second offence to which the defendant pleaded guilty.

5. The appellant was arrested and in an interview she gave a detailed prepared statement, where she admitted to being intoxicated and, due to that, could not remember the incident. She accepted the evidence offered and apologised for her actions.
6. The appellant had two previous convictions: on 14 February 2020 she was fined for failing to provide a specimen for analysis arising out of driving or attempting to drive, and on 27 May 2021 she was fined and ordered to pay compensation for three offences of assault by beating on an emergency worker. It is of significance that this last conviction was only two weeks before the instant matters.
7. The case came before the Crown Court because initially the appellant elected trial by jury, as was her right. Had she pleaded guilty from the start we have no doubt that the matter would more appropriately have been dealt with in the Magistrates' Court, as the previous similar offences had been in May 2021. The plea of guilty was on the basis that she had acted recklessly.
8. There are sentencing guidelines from the Sentencing Council for the Magistrates' Court but not the Crown Court. However, it was agreed at the hearing below that it was appropriate for the sentencing judge to take those guidelines into account. It was agreed by the prosecution and the defence that the two offences fell to be considered as Category 2B, that is, lesser culpability and minor physical harm, providing a starting point at a low-level community order with a range of a Band C fine up to a high-level community order. The custodial sentence was outside the agreed range. As the assault was against emergency workers, it was accepted and agreed that there should be an appropriate uplift which the prosecution suggested should be "a more onerous penalty of the same kind identified for the basic offence", and again this was agreed by the defence.
9. There was a pre-sentence report in which it was stated that the risk of further offences could be managed in the community. The report refers to difficulties in the appellant's marriage which lay behind the appellant's disturbed memory state and her intoxication on the day in question.
10. Sentencing the appellant, the learned judge stated that, from his view, the case passed the custody threshold, but he did not explain why. In our judgment, such explanation was required when a custodial sentence, albeit suspended, was being passed contrary to the agreed categorisation of the offences.
11. In support of this appeal, Miss Penfold, for whose written and oral submissions we are grateful, submits that in imposing a custodial sentence the learned judge erred in concluding, as he must have done, that only a custodial sentence was appropriate in this case. She reminds the court that a suspended sentence is not a more onerous penalty of the same type, but is a different type of penalty altogether, and one which should not be imposed in any form, unless there is no suitable non-custodial sentence available. We agree.
12. In our judgment, a financial penalty having failed to deter the appellant from committing further similar offences two weeks later, the learned judge should have considered whether a community penalty with requirements addressing the specific problems facing the appellant which led to the commission of these offences would be sufficient. Although emergency workers should in general be protected by the courts, it is clear to us that mental health difficulties, combined with intoxication, lay behind the commission of these offences and that the appellant required help, which she has now been receiving through the requirements attached to the suspended sentence order and, as we understand, with some success. Those same requirements can equally be part of a community order which, in our judgment and in accordance with the sentencing guidelines, would more properly reflect the appellant's culpability. A suspended sentence was, in our judgment, unnecessary and manifestly excessive in the circumstances of this case. We accordingly quash the suspended sentence order and substitute a community order for a period of 18 months with identical requirements to those that were attached to the original suspended sentence order.
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