McDermott, R. v

MR JUSTICE NELSON: On 19th January 2006, before Magistrates, the appellant pleaded guilty to assault occasioning actual bodily harm and was committed for sentence to the Crown Court. On 10th February 2006, at the Crown Court at Cardiff, he was sentenced to one year and three months' imprisonment for the offence, less one day for time spent in custody on remand. He appeals against that sentence by leave of the Single Judge.

The facts are that, about 10 o'clock in the evening of 9th December 2005, the complainant, an ambulance man, went with a colleague to a road in Cardiff after they had received a report that a man was lying on the ground. It was in fact the appellant, who was lying on the pavement outside a public house and, as the ambulance team approached him, he became verbally abusive. They still approached him, assisted him to the ambulance and sat him on the step of the ambulance. The police had by that time already been summoned. After a few minutes, the complainant's colleague was concerned that the police had not arrived and so she went to the front of the ambulance to contact control to find out where they were. At that point the appellant stood up, walked across to the complainant and punched him to the head. The complainant then grappled with him and he and his colleague then managed to get the appellant to the ground. The police shortly after arrived and arrested the appellant. He said in interview that he had drunk about 15 pints of lager and two and a half pints of whisky, brandy, Tia Maria and coke. He said he could remember nothing at all about the offence. the complainant suffered a ruptured eardrum as a result and was not allowed to drive for six weeks and was off work for the week.

The appellant was born on the 24th March 1969. He had six previous court appearances for seven offences between May 1987 and January 2006. These included assault occasioning actually bodily harm, criminal damage, driving with excess alcohol, assault on a constable and failing to surrender for bail. The offences were described by the judge as showing that he had a proven violent streak, particularly when he had been drinking. In his late teens he had been convicted twice of unlawful violence to others: in 2000 for assault on a custodial officer at a police station, poking him in the eye, and in 2004 assaulting his estranged wife, first pouring a kettle of warm but not boiling water over her and then beating her to the face and body.

There was also before the sentencing judge, as there is before this court, a pre-sentence report. That indicated that the offence fell into a pattern of alcohol-related violence. The appellant had played down in the past the seriousness of his alcohol problem but in interview admitted that it was a problem and believed that the offence was a wake-up call. He expressed remorse and started to address his drinking, dealing with it with a new partner. He is unemployed, as he lost his last job when he failed a random alcohol test. His offending had a gap of some ten years and during that time he obtained a law degree. There was another gap of two years, indicating a low risk of offending in terms of general criminal behaviour. However, his last two offences were committed in a period of just over 12 months and represented an increase in seriousness. Whilst he had his alcohol problem he continued to pose a risk to the public in respect of violent behaviour.

There were also before the court two documents about the appellant. The relevant one was a character reference, indicating his attempts to solve his problems and his success in doing so from the Big Issue Cymru and a note regarding his contact with the Drug and Alcohol Unit. The judge, when sentencing the appellant, said that this was a forceful blow, as it had ruptured the complainant's eardrum, causing it to bleed. The appellant had expressed remorse for his behaviour and steps had been taken to address the drinking but alcohol was a real problem. Ambulance personnel were entitled to protection and so the courts had to impose severe sentences on those who assaulted them. This case was aggravated by the appellant's previous convictions for violence. The sentence was intended to punish and to protect the public and it took into account his remorse, his plea of guilty, his age, his antecedents, the contents of the pre-sentence report and his efforts to deal with his alcohol problem. He was not a dangerous offender.

The principal ground which has been put before the court, in both the written grounds and also in his helpful and succinct submissions today, by Mr Crowther is that this is a case where insufficient attention was paid by the sentencing court to the case of R v McNally [2000] 1 Cr.App.R (S) 535. There a sentence of 12 months' imprisonment for assault occasioning actual bodily harm on a doctor at hospital was reduced to six months. In the course of the judgment, Rose LJ Vice President indicated that doctors, nurses and other staff are entitled to whatever protection the courts could give and those who used physical violence against them could expect a sentence of immediate imprisonment. The length of the sentence must depend on the circumstances of the particular case. Aggravating features would including striking repeated blows and the use of a weapon or feet or headbutting, the infliction of serious or lasting injury, the use of violence on more than one person. Mitigating features would include immediate and genuine remorse, a plea of guilty, good character and personal circumstances.

The facts of that case have been analysed by Mr Crowther and various distinctions drawn between that and Mr McDermott's case. Mr Crowther accepts that there are differences which indicate that the case of this appellant is more serious than that of Mr McNally but, to summarise the effect of his submissions, the final submission he made is that the sentence should not have been two-and-a-half times as long a sentence as that of Mr McNally. He draws attention to the fact that McNally had good character whereas here the appellant does not. McNally's case was more sympathetic in the sense that he was depressed and suffering grief at the illness of his son, whereas here the appellant is an alcoholic. But there are none of the aggravating features indicated by Rose LJ in McNally present in this case and, although the matter is not one of complete clarity, it would appear that the injury is less serious here than that in McNally. In each a single blow only was delivered. The guilty plea here was at the very earliest stage possible, namely at the Magistrates' Court. There is clear remorse here, steps taken to address the alcohol problem and, when all these factors are taken into account, it can be seen that this is a case where, although a severe sentence was required, the sentence of one year and three-months was excessive.

Offences of this nature are rightly treated as serious by the courts and it was appropriate for the judge to say in his sentencing remarks, as he did, that the sentence he passed was intended to send a message to others who might behave in a similar manner. The case of McNally makes it clear that sentences in assaults on medical staff, ambulance men and other such public servants will frequently be custodial, as such public servants should have, and, sadly, have often needed, the protection of the courts. What sentence is passed will plainly depend upon the circumstances of the individual case. It is certainly not in any way to be thought, and indeed Mr Crowther does not submit it, that McNally lays down any guideline as to what the sentence should in fact be. It was a decision on its own facts, the guideline element being, as we have indicated, that each case will depend upon its own fact. Here, in general terms, immediate custody is required in cases of assaults on medical staff.

Here, the appellant, in the view of this court, is in an entirely different situation to that of McNally. The previous convictions he has include four for violence, two some years ago but two relatively recently and such offences are frequently carried out when the appellant has been in drink. In addition, McNally had, as his reason for carrying out the assault (although there never can be an excuse for such an assault) the fact that he had attended the hospital, deeply anxious about the health of his son, who had attended there. Whereas, in the present case, the offence was simply carried out because the appellant had taken alcohol. Alcohol is in fact, as this court has often said, an aggravating feature, not a mitigating feature, and, when set against the previous convictions for violence, and having taken into account all the helpful submissions made to us by Mr Crowther, this court is of the view that 15 months was not an excessive sentence.

The appellant is to be commended for his new determination to control his drinking. This bodes well for the future but does not, in the view of this court, amount to a reason for reducing his sentence, which, as we have indicated, we do not regard as excessive in all the circumstances.

Accordingly, the appeal is dismissed.