Kowalski, R. v

LORD JUSTICE MOORE-BICK: On 6th August 2007, at the Crown Court at Kingston-upon-Thames, the appellant pleaded guilty to one charge of common assault and one charge of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. On 22nd November 2007, he was sentenced by HHJ Price QC in respect of the offence of inflicting grievous bodily harm to an extended sentence of three years' imprisonment pursuant to section 227 of the Criminal Justice Act 2003, comprising a custodial term of 18 months' imprisonment and an extension period, that is an extended period of licence, of 18 months. In respect of the offence of common assault he was sentenced to seven days' imprisonment concurrent. The appellant was ordered to pay compensation of £800 and a further £722 towards the prosecution costs. He now appeals against sentence by leave of the Single Judge.

The convictions arose out of a fracas which occurred at a nightclub in Kingston. On the night of 24th June 2006, the appellant had been out celebrating his birthday with a group of friends. He was in good spirits and, although he had consumed alcohol, he was not drunk. According to his basis of plea, he and his friends entered the Oceania nightclub and the appellant went to the bar to buy a round of drinks. He saw three women standing at the bar in front of him. He asked them to move but his request apparently fell on deaf ears, so he placed his hands around the waist of one of them and moved her out of the way in order that he could get closer to the bar. Immediately after moving her, the appellant turned to allow her to resume her original position, which she did. He had not thought she would take offence but would treat it as a piece of good natured fun. That formed the basis of the charge of common assault.

Although the appellant had not expected to cause offence, however, another member of the group remonstrated with him. A brief conversation took place between them and then, according to the appellant, the girl struck him in the face without warning, thereby causing him injuries which were noted when he was examined later at the police station shortly after midnight. The appellant, having been struck, shouted at his assailant and felt his face for injuries. He found that his bottom lip was bleeding and that a large swelling was already appearing on his forehead, which was throbbing intensely. He immediately grabbed his assailant by pulling her hair downwards towards him with the intention, he said, of preventing a possible further attack and also to see what, if anything, she had in her hand which might have caused his injuries. However, he accepts that at that point he momentarily lost control of himself and struck out at her, punching her twice in the face. He said in his basis of plea that he regretted his actions which he conceded had involved the use of excessive force and did not amount to self-defence in response to the initial assault upon him. As a result of the appellant's actions, the complainant lost consciousness. She sustained a laceration through the full thickness of the lower lip, which required stitching and a hairline fracture of the jaw.

The police were called and the appellant was arrested. A police doctor later found that he had sustained a cut to the lower lip compatible with having been punched and that he had a cut and swelling on his forehead consistent with having been hit with an object of some kind.

In two statements, each dated 10th July 2006, the complainant said that she did modelling work and performed in a dance group, so the cosmetic effect of the assault was very important to her. She said she had been unable to exercise and prepare for a dancing event and was unable to attend rehearsals and a photo shoot because of her swollen lip and the other injuries she had sustained. She said that since the assault she felt anxious and distressed by people standing behind her in crowds and was generally more suspicious and self-conscious.

The appellant had previous convictions for assault occasioning actual bodily harm. The first was committed in February 2002, also in a bar. On that occasion he had approached a girl in an unwelcome manner and had been asked by her boyfriend, a man of Asian origin, to stop. The appellant had abused him racially and had then struck him on the head a number of times with the base of a bottle causing a wound to his scalp which required six stitches. For that offence he was sentenced to a community punishment order of 60 hours and ordered to pay £400 compensation. The second offence was committed in October 2004, also against a man of Asian origin, for which he was made the subject of a community rehabilitation order and ordered to pay £300 compensation. Both offences appear to have been racially motivated and committed while under the influence of alcohol.

The appellant is still a young man; he is now 35. He has excellent academic qualifications but appears at an earlier stage in his life to have found it difficult to settle into normal employment and spent many years after leaving university travelling and working abroad. In a pre-sentence report dated 22nd August 2007 the author assessed him as being at low or medium risk of re-offending, but in a second report dated 19th September prepared by the same person he was said to present a moderate risk of re-offending and a risk of serious harm. The report then continued as follows:

A third pre-sentence report was made by a different probation officer in response to a request from the judge, who asked in particular for a very thorough and clear assessment of risk and dangerousness. That report provided a description of the previous offences, to which we have referred, and gave some insight into the appellant's attitude. It suggested that he had a entrenched dislike of persons of other ethnicities and held discriminatory views of women. However, when he came to deal with risk and dangerousness the author was much less forthright in his views than the author of the previous report had been. He referred to the fact that the appellant had committed violent offences against Asian males and against females and said it would appear that he presented a risk to those groups. He noted that he had been assessed as presenting a risk of serious harm, both physical and emotional, of a kind which might have an enduring effect. The writer said that it was unclear why the appellant had reacted with excessive violence towards strangers on the three occasions of which he was aware and that he was not confident that the appellant understood or had dealt with the reasons for his behaviour. He recognised that the appellant had made some progress toward reducing the risk of his re-offending but that that risk remained.

The judge also had before him a report from a clinical psychologist, Dr Tim Green, who considered that the appellant was motivated to change his behaviour but required treatment of a kind that might not be available through the Probation Service. He also had before him a report from a cognitive behavioural therapist, Mr Bas Chaudhri, from whom the appellant had received treatment. Mr Chaudhri expressed the view that the appellant did not pose a danger to the public because he had already dealt with his misuse of alcohol and had addressed the other factors which had previously contributed to his violent behaviour.

Assault occasioning actual bodily harm is a specified offence and the judge was therefore required by section 229(3) of the Criminal Justice Act 2003 to assume that the appellant posed a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences, unless, after taking into account information available to him about the nature and circumstances of those earlier offences, any pattern of behaviour they exhibited and all the information he had about the appellant, he considered that it would be unreasonable to conclude that there was indeed such a risk. When passing sentence, the judge referred to the statutory provisions and held that it would not be unreasonable in this case to conclude that the appellant posed a significant risk of causing serious harm to members of the public by committing further specified offences in the future.

The sole ground of appeal in this case is in substance that the judge was wrong to hold that the appellant was dangerous and therefore wrong to pass an extended sentence of imprisonment. It is said that he failed to take sufficiently into account, in particular, the period (almost 18 months) that had elapsed since the offence, during which the appellant had been on bail and had been undergoing cognitive behavioural therapy on his own initiative; the fact that he had stopped drinking alcohol and no longer visited nightclubs; the fact that he was engaged to be married and that his fiancée had a positive influence on his behaviour; the fact that Dr Green and Mr Chaudhri had both noted changes brought about by the treatment that he had already undergone; and the fact that he was remorseful and ashamed of what he had done.

We have been referred in counsel's written advice to the decision of this court in R v Lang [2006] 2 Cr.App.R.(S) 3, in which the court drew attention to some of the factors which should be borne in mind when deciding whether a defendant poses a significant risk of causing serious harm in the future. That passage is too well-known to require citation but we bear it in mind.

In the case of R v Johnson [2007] 1 Cr.App.R(S) 112, the President of the Queen's Bench Division, giving the judgment of the court, pointed out in paragraph 8 that the decision in Lang explained that sentencers should not allow the language of section 229(3) to obscure their ultimate responsibility for making the necessary assessment. He said that the effect of Lang was that in the end the question whether it is unreasonable to make the assumption of dangerousness on the basis of previous convictions for specified offences is a matter for the judgment of the sentencer. The sentencer is entitled to conclude that, notwithstanding the statutory assumption, the offender, even with previous convictions for specified offences, does not satisfy the requirements of the statute. Later the President pointed out that, although section 229(3) raises a presumption, it is one that can be rebutted. That is another salutary reminder that ultimately it is for the sentencing judge to determine whether the requirement of section 229(3) is met.

In the present case it is not possible to ignore the fact that because of this appellant's record of offending the judge was obliged to regard him as dangerous unless it was unreasonable to do so. That decision, of course, is one for the sentencing judge and it is also worth noting that, as the President observed in paragraph 11 of the judgment in Johnson, this court will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles and applied his mind to the relevant facts.

That, as it seems to us, is the appellant's principal difficulty in this case. Before we can say that the judge's decision was wrong, we have to be satisfied that, on the material before him, which included the circumstances of the previous offences, the circumstances of the offence for which he stood to be sentenced and the information the judge had about his personal background, the judge could not properly come to the conclusion that it would not be unreasonable to hold that there was a significant risk to members of the public from other offences committed by him in the future. In the light of all the material before him, we do not think that the judge can be criticised for coming to that conclusion, as he did, and passing an extended sentence.

However, we now have the benefit of a further report prepared by the Probation Service at the request of the Single Judge. We also have the benefit of two letters written by those who have had contact with the appellant during his time in custody. It is fair to say that the supplementary report is perhaps less helpful to the appellant than he might have hoped. Although the author recognises that he has made progress, he considers that there are still factors underlying the appellant’s behaviour which he needs to address and that there is no evidence of any significant change since the date of sentence. However, the letters from the prison tell a different story. Mr Keith Carden, the resettlement officer, states that at the time when the letter was written in February 2008 the appellant had been employed as an Offender Peer Partner for over a month which involves working side by side with his other Peer Partner, a person of black Caribbean ethnicity, in the Resettlement Centre. He says that it is very apparent not only that they work well together but that they get on very well on a personal level. An essential part of the role involves the appellant working on a one-to-one basis with offenders from all types of background, including many black and Asian offenders as well as other offenders of a variety of ethnic origins. It also involves working with offenders who have a variety of psychological and personality disorders. Mr Carden says that he would not consider allowing the appellant to perform such a role if he did not feel that he could trust him implicitly.

The other letter is from an offender tutor, Ms Norma Pearce, who has provided a character reference for the appellant. She says that he has successfully completed the classroom assistant training course, that she was his teacher for the duration of that course and that she found him to be very keen and productive.

We have been told by counsel that an anger-management course of the kind envisaged by Dr Green as being necessary to enable the appellant to complete the steps needed to enable him to overcome his previous difficulties is available for him in April and that he will take that course if he is allowed to do so.

As we have said, we do not think that in the light of the material before him the judge can be criticised for reaching the decision he did, but we have the benefit of the additional material to which we have referred and in our view it is now possible to say that this appellant has made such a degree of progress as to justify the conclusion that he no longer represents a risk of significant harm to the public as a result of further offending. We therefore quash the extended sentence of imprisonment.

Ms Gasman, who has appeared on his behalf, submitted that a determinate sentence equivalent to the custodial period of the extended sentence of 18 months' imprisonment is too long for an offence of this kind. We disagree. This was a very serious assault against a young woman of sufficient severity to lacerate her lower lip to the full width and fracture her jaw. It appears to have had some potentially significant lasting effect on her. In those circumstances, we consider that a custodial sentence of 18 months was entirely appropriate. We will therefore quash the extended sentence and substitute for it a sentence of 18 months imprisonment. To that extent the appeal is allowed.