R v Paul Hope

The appellant appeals against an extended sentence of 11 years and 2 months, comprising a custodial term of 7 years and 2 months and extended period of licence of 4 years for an offence of attempting to cause grievous bodily harm with intent, contrary to section 1(1) of the Criminal Attempts Act 1981.

A concurrent sentence of 22 months’ imprisonment was imposed for breach of a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997.

We pause at this point to say that the Registrar has drawn to our attention that the count of breach of a restraining order appears to have been erroneously charged as “contrary to section 5(5) of the Protection from Harassment Act 1997”, which was a provision repealed by the Sentencing Act 2020. The correct provision should have been section 363(1) of the Sentencing Act 2020. This does not however invalidate the conviction as the transitional provisions in paragraph 4 of Schedule 27 of the Sentencing Act provide that reference in a document to a repeal provision is to be read as a reference to the re-enacted provision. Having referred to these transitional provisions the Court in R v Jowett [2022] EWCA Crim 629 at [12] provided guidance that the court can simply correct the record accordingly. It follows that we direct the record is corrected to show that the defendant was convicted of an offence contrary to section 363(1) of the Sentencing Act.

Turning then to the facts of the offending. In 2020, a restraining order was imposed on the appellant which prohibited him from going to his mother’s home or contacting her in any way. On 1 January 2024, the appellant went to her address uninvited. He sat on a chair in the living room and asked for some sellotape. The complainant was in a dressing gown and went to get dressed. The appellant followed her, put his hand over her mouth and began to wrap the sellotape around her head. He then took out a knife and threatened to kill her if she made a noise. She tried to push the knife away and in the process cut her hand. The appellant pushed her to the floor and sat on her. He placed his hands on her throat and pushed her throat with his thumbs. She began to fall unconscious due to the strangling and punching her face. The appellant said: “You keep sending me to jail. I have no choice but to kill you. I’m going to have to kill you.” He began hitting her head against the kitchen floor and making references to the complainant sending him to jail and inheritance money.

The complainant subsequently remembered losing consciousness a few times and when she regained consciousness the appellant would strangle her again. She believed the appellant must have dragged her from the kitchen and put her under some stairs as she woke up later under the stairs. Her mouth was “bubbling” through the tape. She noticed there were toothpicks stuck in her arms. She crawled into the kitchen stating: “Don’t kill me Paul” as she believed the appellant was still in the house.

Her lodger and a neighbour arrived to assist her. She was physically sick. Emergency services were called. Police officers attended and saw the crown of her head was red with blood. Her throat was bruised and swollen and sellotape was round her neck. She was shaking and distressed and told officers she thought she was going to die. Her injuries comprised bruising to the back of her head, neck, cheek and under her eye, inside her mouth and fingers and a small laceration to her thumb.

In her sentencing remarks the judge assessed the offending in relation to attempting to cause grievous bodily harm with intent as high culpability. There was a significant degree of planning, the use of a highly dangerous weapon (a knife), strangulation and a persistent assault committed out of revenge. She assessed harm as category 3 harm, which gave a starting point of 5 years and a range of up to 7 years. Multiple factors of culpability raised the sentence up in the range. Aggravating features were the previous convictions for violence, for which his mother had been a victim in many of them; the breach of restraining order and being on licence at the time. These factors, she concluded, took the offending out of range. After trial, the sentence would have been 8 years’ imprisonment and she then categorised the breach of restraining orders as culpability A and category 1 harm, with a starting point of 2 years. She considered there to be no mitigation, save for a guilty plea, as to which she allowed a 10 per cent reduction which produced a term of 7 years for the attempting to cause grievous bodily harm and a concurrent sentence of 22 months for breach of a restraining order. She assessed the appellant as a dangerous offender and imposed an extended sentence with a licence period of 4 years.

The grounds of appeal focus on the custodial term for the offence of attempting grievous bodily harm with intent. It is said that the judge fell into error and the sentence was manifestly excessive or wrong in principle on the following grounds:

Leave to appeal was granted on grounds 1 and 3 and is renewed in relation to ground 2.

Before us it is submitted that it is an established principle that a sentence for an attempted offence will ordinarily be less than a sentence for the substantive offence itself. In this case there was no basis to depart from the principle, not least as the appellant’s desistence from continuing the assault was what had prevented what he had done from becoming an assault of the severity of the completed offence. A reduction from the appropriate sentence after trial was appropriate and should have been provided to take account of this fact of the attempt. Whilst it is accepted that there should be an increase from the starting point to reflect the aggravating features, those features did not justify an increase of more than 50 per cent above the starting point, taking the sentence after a trial to outside the range and above the starting point of a category 2A offence.

Whilst it is accepted that there was little mitigation, it was wrong to say that there was none. The appellant’s childhood was marked by witnessing and being a victim of physical abuse such that his grandparents took over his care and is one of the considerations included within the title of difficult and/or deprived background or personal circumstances in the relevant Sentencing Guideline.

Although Mr English’s submissions were clear and succinct, we are not persuaded by them for the following reasons.

We accept, as a general principle, that the court should reduce a sentence to take account of the fact that an offence is an attempt. However, the particular circumstances of this offending amounted to an attempt to commit category 2 harm (grave injury or permanent, irreversible injury or condition not falling within category 1) which the judge assessed as category 3 harm (all other cases of really serious harm; all other cases of wounding), to reflect the fact that the offending did not continue to the gravest level of harm. As the judge said this was not a case where the appellant had voluntarily desisted from his actions as might be the case in a more classic case of attempt. The prosecution case before the sentencing judge was that the appellant had stopped at the point at which the victim had become unconscious, and he placed cocktail sticks in her arm to establish this fact. Moreover it may be said that a categorisation of level 3 harm for the completed offence may have been justified given the loss of consciousness following the asphyxiation, and the cocktail sticks placed in the arms of the complainant after she lost consciousness.

There was no challenge to the starting point of 3 years for culpability 3A harm, with a range of 3 - 5 years and we consider the judge was entirely justified in increasing the starting point to reflect the serious aggravating features. These included: breaches of the restraining order; previous convictions for violence, some of which had been directed at his mother (the complainant). The Appellant had breached a previous restraining order imposed to protect his mother in what the relevant crime report indicates must have been a terrifying incident for his mother. The appellant was also in breach of licence having only recently been released from custody.

Of itself, the offence of breach of a restraining order charged alongside the attempt offence justified a 2-year starting point. We consider the judge could have structured the sentence by a consecutive sentence for this offending which was in the event only one of the aggravating features. The offence of breach of a restraining order was complete once the appellant entered the front door irrespective of the assault that then followed, and the courts are required to mark breaches of court orders as is reflected in the Sentencing Guideline for this particular offending. Further, the appellant repeatedly strangled his mother. The recently introduced guideline for asphyxiation has a starting point of 2 years 6 months for repeated strangulation which indicates the seriousness attached by the courts to this aspect of the appellant’s offending.

As conceded on behalf of the appellant there was little mitigation. But even if the judge had taken account of his childhood difficulties, as is urged upon us, the aggravating features would still significantly outweigh the mitigation for the reasons given.