R v Lee James Thorpe

MR JUSTICE PEPPERALL: On 17 September 2024 in the Crown Court at Newcastle upon Tyne, the appellant pleaded guilty to offences of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, and having a corrosive substance in a public place, contrary to section 6 of the Offensive Weapons Act 2019.

On 21 January 2025 at the same court, Assistant Judge Advocate General Mitchell sentenced the appellant, then aged 37, to three years and nine months' imprisonment on each count. Such sentences were ordered to run concurrently. In addition, the judge ordered the forfeiture of the ammonia that was the subject of the second offence and ordered that the appellant should pay the victim surcharge. The appellant now appeals against sentence with leave of the single judge.

On 14 April 2023, Police Constable Payne was on duty in uniform in the North Shields area when he received a report of a vehicle being driven erratically. As the officer approached the then stationary vehicle, he saw two men, one of whom was the appellant, making off. The appellant slipped allowing the officer to catch up with him.

The appellant resisted arrest and sank his teeth into Police Constable Payne's arm. Such was the appellant's determination not to let go, that the officer had to punch him to the face three times in order to free his arm from the appellant's bite. The constable then started placing the appellant in handcuffs.

A second officer arrived in order to assist his colleague. The appellant then shouted: "Get off me now or I'll squirt you. I have ammonia in my pocket."

The appellant continued to resist the officers, at one point managing to grab Police Constable Payne's baton. The second officer sought to control the appellant in vain by spraying him with an incapacitant. Police Constable Payne had to deliver strikes to the appellant's back in order to get him to relax his arms. He also warned the appellant that he would be Tasered. The appellant continued to resist the officers and grabbed Police Constable Payne's hand. It eventually took three officers to detain him.

Upon arrest a quantity of ammonia in a detergent bottle was found on the appellant's person.

Police Constable Payne suffered a fracture to the fifth metacarpal on his right hand and severe bruising from the bite injury to his left forearm.

The appellant had 19 convictions for 39 offences spanning from July 2002 to January 2018. His relevant convictions included offences of possessing a prohibited weapon, having an article with intent to damage or destroy property, battery and two offences of racially aggravated assault in 2002; disorderly behaviour likely to cause harassment, alarm or distress, having a knife in a public place and robbery in 2003; resisting or obstructing a Police Constable in 2004; malicious wounding in 2006; and robbery in 2007. For that last offence the appellant was sentenced to an indeterminate sentence for public protection from which he was only released in 2017.

In view of the seriousness of these offences and the appellant's appalling record of previous offending, a further sentence of immediate imprisonment was inevitable. Accordingly, the judge concluded that a pre-sentence report was not necessary. We agree with that assessment and conclude that the judge was therefore entitled in not obtaining a report in this case.

The judge considered the guidelines issued by the Sentencing Council for offences of assault and possession of an offensive weapon. He concluded that the ammonia was a highly dangerous weapon such that this was a culpability A offence. Further, he found that the offence risked serious disorder, such that this case involved Category 1 harm. The guidelines identify a starting point for a Category A1 offence of possession of an offensive weapon of one-and-a-half years' imprisonment with a category range of one to two-and-a-half years.

The judge considered that the appellant's previous convictions were a serious aggravating feature of the case that, as he put it, "propelled the appellant to the top of the available range for that offence".

As to the assault, the judge found that the appellant had intended to cause greater harm. He observed that the appellant had broken the officer's hand, threatened to use the ammonia and grabbed the officer's baton. He noted that it took three officers, some force and the threat that a taser would be deployed in order to effect the appellant's lawful arrest.

Turning to the assault guidelines, the judge concluded that this was a high culpability offence and that Category 1 harm was caused in that the officer suffered serious physical injury. Lest he was wrong about the level of harm, the judge concluded that he would in any event treat the offence as a Category A1 assault once he took into account the previous convictions and the fact that harm was in this case inflicted on a serving police officer. The guidelines identify a starting point for a Category A1 assault of two-and-a-half years' imprisonment, with a category range of one-and-a-half to four years.

The judge then referred to totality and concluded that the sentence for this offending after trial would have been three years' imprisonment for the assault and a further two years for possession of the ammonia, making a total sentence of five years. The judge allowed credit of 25 per cent for the defendant's guilty pleas in order to arrive at his final sentence of three years nine months' imprisonment, which he then imposed concurrently for both offences.

By this appeal, Shada Mellor, who appears for the appellant as she did before the judge, argues that the sentence was manifestly excessive and that the judge was wrong in principle in declining to reduce the sentence by reason of the delay in the case.

As to the first ground, Ms Mellor argues that the judge had been wrong to find serious injury and that the assault should have been treated as a Category A2 offence with a lower starting point of one-and-a-half years' imprisonment and a category range of up to two-and-a-half years. She argues that the judge's notional sentence after trial of three years after reflecting totality must mean that, before any reduction for totality, the judge's sentence was even higher. Further, Ms Mellor argues that insufficient allowance was made for the mitigation and specifically the appellant's self-report of autism spectrum disorder and attention deficit hyperactivity disorder.

As to count 2, Ms Mellor observes that there are no specific guidelines. She does not, however, criticise the judge for using the guidelines issued by the Sentencing Council for having bladed articles and other offensive weapons in a public place. Noting the judge's observation about the appellant's previous convictions propelling the offence to the top of the available range, she infers that the sentence on this count was reduced by only six months for totality and submits that the 2006 robbery apart, all of the appellant's previous violent offending was as a juvenile.

In our judgment the judge was right in his initial view to regard the assault as a Category A1 offence. Culpability was high because this was a prolonged and persistent assault in which the appellant bit the officer, broke his hand and attempted to use his baton against him. In order to avoid double counting we at this stage leave to one side the further threat to use ammonia to cause injury.

Further, this was Category 1 harm when viewed in the context of offences of assault occasioning actual bodily harm. The officer was not just bitten, suffering a break in the skin and severe bruising but a bone was broken. Accordingly, the judge selected the correct starting point of two-and-a-half years' imprisonment. While the judge explained how, if he were wrong in that assessment, the offence would in any event be aggravated, we consider that those same aggravating features applied equally upon his conclusion that this was a Category A1 offence. First, the appellant had an appalling record of previous violent offences and of carrying weapons. It is true that he had not been convicted of any such offence since 2007 but that must be put into context in that he was in custody for 11 years between 2006 and 2017.

Secondly, this was an offence committed against an emergency worker acting in the course of his duty. That is a statutory aggravating feature and in accordance with section 67 of the Sentencing Act 2020 we state that this offence was so aggravated.

Against that, the judge was of course required to consider any mitigating features. He identified none. While Ms Mellor submits that the judge failed to take into account the appellant's autism and ADHD, she confirms that there was no evidence placed before the court as to those matters. Indeed, the way she puts it is that it was the appellant's self-report rather than there being any evidence before the court in respect of those matters. In any event, it is not explained how such disorders, even if present, provide mitigation in respect of this violent conduct.

Leaving aside for the moment the question of delay that we address under ground 2, we conclude that on the materials before the judge and this court the judge was right to find that there was no mitigation. In our judgment, the serious aggravating features of this case therefore justified a substantial upward adjustment from the starting point of two-and-a-half years. We consider that for the assault alone the judge would have been entitled to pass a sentence of around three-and-a-half years.

We turn then to the second count. We agree with Ms Mellor that the guideline for possession of bladed articles and offensive weapons in a public place does not on its face apply to offences under section 6 of the 2019 Act. The guideline does, however, expressly apply to like offences concerned with having offensive weapons in a public place, which, like the offence under section 6, are also subject to a maximum sentence of four years' imprisonment. Further, the guideline expressly refers to a corrosive substance as an example of a highly dangerous offensive weapon.

We do not consider that the Sentencing Council deliberately excluded the section 6 offence from its guideline; rather we note that the guideline has been in force since 1 June 2018 and was therefore published before either the passage of the 2019 Act or the subsequent date in 2022 when section 6 came into force. We therefore conclude that the judge was right to apply this closely analogous guideline to the offence under section 6 and Ms Mellor does not argue otherwise.

In our judgment, the judge was right to find that this offence was culpability A in that, as already noted, the guideline identifies a corrosive substance whose dangerous nature is substantially above and beyond that of other offensive weapons as an example of a highly dangerous weapon. Here, on the evidence, the ammonia in the appellant's possession was strongly alkaline and would have caused severe skin burns and damage to eyesight should it have come into contact with a person. It might also have caused respiratory irritation.

Further, the judge was right to find that the offence risked serious disorder given the context in which the appellant carried and threatened to use the substance. The judge was therefore right to take a starting point of one-and-a-half years. Again, the offence was aggravated by the appellant's criminal record and, while not in this case a statutory aggravating factor, by the threat to use the ammonia on a police officer in the course of the officer's duty while resisting his lawful arrest.

Leaving delay to one side, there was no mitigation and the judge was entitled to find that the appropriate sentence after trial was at the top of the category range i.e. two-and-a-half years' imprisonment.

The judge was then required to consider the principle of totality. He did so and in our judgment his notional sentence after trial of five years' imprisonment made adequate adjustment to the individual sentences in this case to reflect that principle. The resulting sentence of three years nine months' imprisonment, after credit for the guilty pleas, was deservedly stern but was not, in our judgment, manifestly excessive.

Having chosen to pass concurrent sentences, the more orthodox approach would then have been to load the criminality onto count 1 and pass a shorter concurrent sentence on count 2 limited to the two years the judge identified as the appropriate sentence on that count. Nevertheless, we are concerned with the total sentence and not with the precise way in which the judge structured his sentence.

The appellant was arrested on 14 April 2023 for these offences. On the following day, he was recalled to prison and arrested for an unrelated matter for which he was subsequently tried and acquitted. There was, Ms Mellor argues, unjustified delay before this prosecution was commenced in August 2024 and sentence passed in January 2025. The effect, she submits, was that the appellant was not able to start serving this sentence until 2025 since the time spent on recall does not count towards his sentence.

The judge considered this submission and concluded that no adjustment should be made to the sentence that should otherwise be passed. We agree. Parliament has provided by section 240ZA of the Criminal Justice Act 2003 that time spent in custody following recall is not also to count as time on remand that should subsequently be deducted from a sentence of imprisonment. Further, the delay in commencing this prosecution was not especially lengthy and the case then proceeded with reasonable dispatch. The judge did not therefore err in principle in deciding that there should not be any reduction in the sentence in this case by reason of prejudice arising from a delay in the prosecution.

Accordingly, we dismiss this appeal against sentence.

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