Boswell, R. v

1. LORD JUSTICE DYSON: On 3rd February this year the appellant appeared before Salford Justices. He entered guilty pleas to the offences of making a threat to kill and assault occasioning actual bodily harm. He was committed to the Crown Court for sentence on 15th March at Manchester Crown Court. He was originally sentenced as follows. For making a threat to kill, a sentence of imprisonment for public protection was imposed, pursuant to section 225 of the Criminal Justice Act 2003, with a minimum term of 15 months, less 41 days spent on remand. For assault occasioning actual bodily harm, an extended sentence was passed pursuant to section 227 of the Act, comprising a 12 months custodial element and an extended period of three years; that sentence to run concurrently with the other sentence. The sentence imposed for the assault occasioning actual bodily harm was subsequently varied, in the absence of the parties, to one simply of no separate penalty.

2. The facts can be summarised as follows. The applicant had an on/off relationship with the complainant, Paula Howcroft, for six years. He had been violent on occasions during the relationship. That relationship ended some two weeks before the offences took place.

3. On the evening of 1st February 2007, the complainant had been out drinking with her friends. At about 12.30 am she bolted the front door and went to bed. Shortly after, she heard a key turning in the front door. She went to turn on a light and she saw the applicant kick at the front door, shouting to her to open the door and saying that if she did not he would kick it in. She undid the bolts and the applicant walked in, shouting. He punched the complainant hard in the face, knocking her back into the sitting room. He followed her and punched her again several times. She fell back onto the sofa. He took hold of her arm and bit it. He continued to punch her and shouted that he would kill her. The complainant took these threats seriously. When the applicant went into the kitchen, she attempted to escape, but he heard her and went to the front door and shut it. She returned to the sitting room and opened the curtains in the hope of attracting attention. He approached her with a kitchen knife with a blade 6 to 7 inches long. He punched her again and held a knife to her throat and threatened to kill her again. He held the complainant in a strangle hold. She tried to push him away but was unsuccessful as he kept the knife pushed to her throat. The complainant thought the incident lasted for 20 minutes. It ended when the police arrived and banged on the door. The applicant let them in and was arrested.

4. The complainant was taken to hospital. She had scratches to her neck, jaw and back. She had bruising around her eye and a bite mark on her arm. As a result of being punched in the mouth, she suffered nerve damage to a tooth which required to be capped.

5. The applicant is 35 years of age. He has various convictions for driving matters and dishonesty going back to 1987. He also has four previous convictions for offences of violence. The details of these are as follows: 1992, an assault on police, for which a compensation order was made; 1994, an offence of affray, for which a sentence of one month's imprisonment was imposed; 1995, for an assault on the police, a sentence of four months' imprisonment was imposed; and in 2000, for another assault on the police, he was conditionally discharged.

6. There was a pre-sentence report before the judge. The writer of the report said that the offences had been committed after the applicant had injected himself with a mixture of crack cocaine, heroin and wine. The report assessed the risk of serious physical and psychological harm from the applicant based on various information about the applicant's history and assessments carried out using what were referred to as "the probation tools". The author said that based on that information and those assessments, it was his assessment that the applicant "presents as a high risk of harm to the public, particularly to females with whom he may be involved in a relationship. The nature of the harm relates to the potential to cause serious psychological or physical harm". In the next paragraph, under the heading "Likelihood of re-offending", the writer said this:

"Actuarial assessment tools used in the preparation of this report take into account Mr Boswell's extensive range of previous convictions and indicate that his likelihood of re-offending has been assessed to be of a high level. Research shows that domestic violence is not likely to be a one-off occurrence but a consequence of an established pattern of abusive and controlling behaviour which includes emotional and psychological control and abuse. Risk of re-offending can be reduced through increased awareness and understanding of the triggers and motivation to his behaviour and input into an alternative approach that promotes equality in relationships. Given his refusal to undertake such work through IDAP groupwork, this work can be done on a one-to-one basis with his offender manager during the period on Licence during the community."

7. In passing sentence, the judge noted that the applicant had pleaded guilty at the first opportunity, the injuries that the complainant had suffered were not of the worst, but the limited extent of the injuries was due to the fact that the police arrived when they did. The relationship had been difficult, the police had been called previously, and in the past the applicant had been found talking to himself, threatening to kill the complainant and her female partner. Because of the previous specified offence of affray, the judge said that there was an assumption that there was a significant risk that the applicant would cause serious harm, unless it would be unreasonable to conclude that there was such a risk. In his view there was such a significant risk. Although the offences were committed in isolation, they were committed in an aberrant moment when the applicant was taking drugs. There was a risk of further aberrant moments in the future. Even without the previous conviction of affray, the serious assault, coupled with what was said in the pre-sentence report, meant that there was a significant risk of serious harm. He then proceeded to pass the sentence to which we have already referred.

8. Mr English submits that the judge erred in principle in imposing a sentence of imprisonment for public protection. His subsidiary submission is that even if that is wrong, the period of 15 months specified was, as he put it, a little too long. Mr English submits that, on the material, the judge was wrong not to disapply the statutory assumption. The best evidence of the applicant's dangerousness was his past behaviour. He submits that the writer of the pre-sentence report applied mechanistically what are referred to as the probation tools, rather than concentrating on the applicant's previous history - a history which did not disclose, he submits, a record of serious violence and the risk therefore of danger.

9. Mr English also points out that the offence was committed in what he describes as peculiar circumstances. The relationship had been terminated some two weeks before the incident. There had been at least one occasion when the parties had met and there had been no problem.

10. Mr English also points out that the applicant did not go to the complainant's house on the night in question armed with a knife. He also prays in aid the various other matters in mitigation, such as the early plea of guilty at the earliest opportunity, the expression of real remorse and the fact that the applicant is doing well in prison.

11. We do not accept that the sentence imposed for the offence of making threats to kill was wrong in principle or manifestly excessive. The judge directed himself impeccably as to the law. This was a specified serious offence and assault occasioning actual bodily harm was a specified offence. As a consequence of the applicant's conviction for affray in 1994, section 229(3) of the 2003 Act applied. The court was bound to assume that the applicant posed a significant risk to members of the public of serious harm occasioned by the commission of further specified offences unless, in all the circumstances, it would be unreasonable to conclude that there was such a risk. In the light, in particular, of the conclusions reached in the pre-sentence report, our view is that the judge correctly concluded that it was not unreasonable to conclude that there was such a risk.

12. We do not accept that there is any substance in the criticisms made by counsel of the writer of the report. It is clear that the writer of the report had regard to the particular circumstances of the case, as well as applying the "probation tools" in order to make the assessment. There is nothing wrong with that. Those tools are no doubt the product, as the writer of the report says, of a good deal of research and provide a satisfactory basis for reaching conclusions of the kind that were reached in this case.

13. It follows therefore that the assumption was not displaced and the judge was bound to impose a sentence of imprisonment for public protection. Nor do we think that the minimum term of 15 months can be impugned; indeed, Mr English only submits rather faintly that it was manifestly excessive. This was a very serious offence. A particularly serious feature of it was that the applicant held a knife to the complainant's throat as he made threats. A determinate sentence of 30 months on a plea of guilty would not have been manifestly excessive.

14. Finally, we turn to the judge's decision to impose no separate penalty for the assault occasioning actual bodily harm. It is common ground between counsel, that is to say Mr English and Mr Lodge who appears for the Crown, that this was an unlawful sentence. The judge's first thoughts were correct: see section 227(2) of the 2003 Act. Having decided to pass a sentence of imprisonment for public protection for the offence of making a threat to kill, the court had no option but to pass an extended sentence in respect of the assault occasioning actual bodily harm. We grant leave to appeal. We quash the decision to impose no separate penalty in respect of the assault occasioning actual bodily harm and substitute for it a concurrent sentence of 12 months' imprisonment with an extended period of one year. To that extent only, this appeal is allowed.