R v John Seal

On 17 December 2024, in the Crown Court at Maidstone, the appellant was standing trial for an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. It was the second day of his trial and the complainant, Susan Duffy, had already given her evidence to the jury. The appellant then pleaded guilty to the offence on re-arraignment and, on the same day, he was sentenced by the trial judge, His Honour Judge Julian Smith, to 6 years 3 months' imprisonment. The judge made restraining orders to protect Ms Duffy and three witnesses who had bravely intervened in this offence.

The judge imposed no separate penalty for offences of taking a conveyance without authority, contrary to section 12 of the Theft Act 1968, and using that vehicle without insurance, contrary to section 143 of the Road Traffic Act 1988. The appellant's driving licence was endorsed and he was disqualified from driving for a total period of 44 months. Further, he was ordered to pay the statutory surcharge. The appellant now appeals against sentence with leave of Wall J.

The appellant and Ms Duffy met through an online dating app in February 2024 and soon formed a relationship. In April 2024, Ms Duffy moved into the appellant's flat. There were difficulties in the relationship and, by the beginning of June 2024, Ms Duffy had moved out. They were, however, still seeing each other from time to time.

In late June, the appellant and Ms Duffy were due to go away for the weekend. After she had finished work on 28 June 2024, she met the appellant in a public house in West Malling where he had been drinking. They caught a taxi back to the appellant's flat. As they were getting ready for bed, the appellant accused Ms Duffy of chatting online with other men. She unlocked her mobile phone in order to allay his concerns. The appellant became angry and later demanded that Ms Duffy again unlock her phone. Ms Duffy was at that point in her underwear, bending over to retrieve something from a suitcase in the living room. As she did so, she felt a significant blow to the left side of her head. She was struck with such force that she was thrown into the kitchen and her head hit the wall. The appellant started kicking and stamping on Ms Duffy as she lay on the floor. She was screaming and said that he was going to kill her. The appellant responded: "Yes, I'm going to kill you". In an attempt to silence her the appellant took some dirty laundry and forced it into Ms Duffy's mouth and to the back of her throat. Ms Duffy gagged and struggled to breathe.

Ms Duffy's screams alerted neighbours to her plight. One neighbour saw the appellant holding Ms Duffy by the throat and powerfully punching her. She described the appellant as appearing to use his full force while calling Ms Duffy obscenities and described Ms Duffy as yelping for help and gasping for breath. Another witness heard the appellant shouting that he would kill Ms Duffy. Realising that this assault was being witnessed, the appellant briefly diverted his attention to close the blinds. As he did so, Ms Duffy tried to get off the floor but the appellant kicked her under the chin forcing her back down. The appellant went to the knife drawer. She again screamed for help and fortunately neighbours then forced entry by kicking open the door. The appellant threatened the intruders and they backed off. While the appellant was distracted by their brave intervention, Ms Duffy was able to make good her escape into the street just wearing her underwear. On hearing that the police had been called, the appellant took Ms Duffy's car. He did so without her consent and drove that car without insurance.

Ms Duffy was taken to hospital by ambulance where she remained for 13 days. She suffered two fractures to the ribs on the left side of the body and three fractures to the right side including a flailed fracture. Her right lung had been punctured and had partially deflated. There was a collection of blood around the right lung and generally around the right side of her chest. There was a build-up of fluid and a chest drain was inserted. There was a further collection of blood on the left side of her forehead and bruising to her forearms, the back of both hands, both sides of her chest cavity, both sides of her abdomen and both buttocks.

Ms Duffy made a victim personal statement almost six months after these offences. She had not made a full recovery from her physical injuries. Her mental health had also been affected. She had struggled with sleep and suffered recurrent nightmares. She constantly dwelt on what might have happened had others not intervened to stop the appellant's assault.

In interview, the appellant accepted that they had argued and that he had hit Ms Duffy with the back of his hand. He described the assault as an understandable reaction to her perceived infidelity. That, he claimed, had caused her to fall into the washing machine, which he believed was how she had received her injuries.

The appellant is now 51. He has three convictions for four offences between 1999 and 2007. These included convictions for assaulting a police constable in 1999 and for battery and a public order offence with intent to cause fear or violence in 2007.

The judge sentenced in this case without the benefit of a pre-sentence report. He did, however, have a psychiatrist report from Dr Roderick Ley and a psychological report from Susan Hope-Borland. The judge concluded that he did not also need a pre-sentence report, and we agree that such report was not necessary in this case.

The judge described this as a very significant beating. He concluded that the fractured ribs must have involved very significant force. The judge, who had heard Ms Duffy's evidence, indicated that the timeline was unclear but he was sure that the incident lasted some 10 minutes or more. The judge considered the guidelines for offences of causing grievous bodily harm with intent, offences involving domestic abuse, reduction in sentence for guilty pleas and sentencing offenders with mental or development disorders or neurological impairments.

As to culpability, he noted that it might be said that this was a prolonged and persistent assault. Even if that high culpability factor were not present, he said that the length of the assault indicated a persistent determination to inflict injury. Nevertheless, he concluded that this was a medium culpability offence within the offence specific guidelines.

As to harm, he noted that the middle category in the guidelines (category 2) requires a grave injury or a permanent irreversible injury or condition that falls short of category 1 harm. The judge concluded that the injuries in this case fell just short of category 2. He said that this was a category 3 case, albeit on the border between categories 2 and 3. The guidelines indicate a starting point for a category B3 offence of 4 years' imprisonment with a category range of 3 to 6 years.

The judge next considered the aggravating features. He said that this was a sustained assault that involved kicking and stamping that could not be explained merely as a loss of temper. This was, the judge concluded, a determined and intense effort to punish and beat Ms Duffy. The judge said that he therefore reached a sentence of 5 years 9 months before considering the domestic context which increased the sentence to 7 years. The judge then reduced sentence to reflect the psychological issues and gave 5 per cent credit for the appellant's guilty plea leading to his final sentence of 6 years 3 months' imprisonment.

In his succinct submissions, James Manning, who appears for the appellant as he did below, argues three grounds. First, he submits that having correctly placed the offence into category B3, the judge's starting point of 5 years 9 months was too high. Secondly, he submits that the increase in the notional sentence to 7 years to reflect that this was domestic abuse was too much and amounted to double counting. Thirdly, he argues that the judge failed to give sufficient weight to the mitigation that was available, including the late guilty plea and the appellant's psychological difficulties. Fundamentally of course, Mr Manning submits that the sentence imposed was manifestly excessive.

As already observed the starting point for a category B3 offence was 4 years' imprisonment. That was the single starting point in this case, and the judge's intermediate workings in which he mentioned possible sentences of 5 years 9 months and 7 years were simply notional sentences that might have been passed after reflecting particular aggravating factors of this offending. While the judge did not actually identify the notional sentence after trial, that can be deduced by working backwards from the final sentence imposed and the judge's indication that the appellant would be afforded 5 per cent credit for his late plea. Doing so, we calculate that the judge's notional sentence after trial was 6 years 7 months' imprisonment. Such sentence was in excess of the category range which, it will be recalled, was up to 6 years' imprisonment. The real question on this appeal, is whether in all the circumstances of this case the judge was entitled to pass a sentence outwith the category range for a category B3 assault.

In considering this question, we note that the judge found a higher culpability factor in that this was a prolonged and persistent assault lasting some 10 minutes in which the appellant used significant violence against his victim, including kicking, stamping, punching and forcing material deep into her mouth, and that he did so deliberately to punish and beat her. In our judgment, that factor would have justified his treating this as a category A case.

Further, we note that the judge considered that the harm in this case was at the boundary between categories 2 and 3. In our judgment, the judge was right to identify these injuries - but particularly the multiple bilateral rib fractures, the flail fracture and the punctured lung - as being right on the borderline between grave injuries at category 2 and other cases of really serious harm at category 3.

Elevating either culpability or harm, but not both, would have led to a raised starting point of 5 years' imprisonment and a category range up to 7 years. On such analysis, the judge's notional sentence after trial would have been within the category range. Having, however, decided to give the appellant the benefit of doubt on both culpability and harm, the judge was nevertheless right to take into account the prolonged and persistent nature of this deliberate attack and the actual extent of the harm caused as aggravating factors. Further, the judge was right to consider the domestic context of this offence to be a serious aggravating factor. As the guideline stresses, the domestic context makes such offending more serious because it represents a violation of the trust and security that normally exists in intimate relationships. Indeed, this offence was committed in the home that the victim had previously shared with the appellant as she was about to go to bed with him.

Against this, we consider that there was little mitigation. The psychiatric report suggested some depression but, more significantly, the psychological report diagnosed autism spectrum disorder and ADHD. While his autism might make the appellant somewhat rigid in his thinking and prone to ruminate over matters, and his ADHD might make him quick to temper, the judge was entitled to conclude that this very violent and sustained assault was not explicable by a sudden loss of temper. We agree and do not consider that either depression or the appellant's neuro-divergence begins to explain this offence.

Weighing therefore the aggravating and mitigating factors in this case, we consider that there could be no criticism whatever had the judge sentenced right at the top of the category range for a category B3 offence. Going a few months beyond that was not, in our judgment, either wrong in principle or manifestly excessive for this very serious offence. Indeed, we consider that it was justifiable in view of the presence of the high culpability factor, the fact that harm was on the borderline of categories 2 and 3, and the domestic context.

We turn then to the credit allowed for the guilty plea in this case. The appellant pleaded guilty on the second day of his trial. Whatever the cause of the change of heart, the guidelines issued by the Sentencing Council are clear. The court should allow maximum credit of 10 per cent on the day of trial but, once the trial has commenced, the credit should be decreased further even to zero. Here, Ms Duffy was not spared the ordeal of attending court and giving evidence against her former partner. In our judgment, the judge was generous to give credit of 5 per cent in this case. Upon the guidelines he would have been entitled to give no credit for this guilty plea.

Finally, the Registrar has drawn the court's attention to the disqualification order. The judge imposed a period of discretionary disqualification of 12 months and an extension period of 32 months. Since no custodial sentence was imposed for the offence that attracted this disqualification order this case was governed by section 35B of the Road Traffic Offenders Act 1988 and not section 35A. The judge's declared intention was to impose a period of disqualification that ensured that the period of 12 months would run from the appellant's release from prison. That was in accordance with the consideration that the judge was required to have regard to by sections 35B(2) and (3). The judge's intention was not in fact achieved by his order because section 244ZA of the Criminal Justice Act 2003 applies to this appellant, with the consequence that he will not be eligible for automatic release until he has served two-thirds of his custodial sentence. We cannot, however, treat the appellant more severely on this appeal against sentence (see section 11(3) of the Criminal Appeal Act 1968). Accordingly, the total period of disqualification must remain 44 months.

Since this was not a section 35A case the judge was wrong to pronounce the 32-month period as an extension period of disqualification. We therefore direct in accordance with the guidance in R v Needham [2016] EWCA Crim 455; [2016] 1 WLR 4449, that the Crown Court record should be amended to express the disqualification as 44 months, comprising the initial period of discretionary disqualification of 12 months and an uplift of 32 months under section 35B.

For these reasons, we dismiss this appeal against sentence but direct that the Crown Court record should be corrected in respect of the disqualification order.