R v Hayden Walker

On 14 March 2024, following his trial in the Crown Court at Lewes, the applicant was convicted of an offence of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861 (“The Act”). On 28 May 2024 he was sentenced to an extended sentence of 7 years comprising a custodial term of 4 years and an extension period of 3 years.

There is no dispute that this was an unlawful sentence. Section 281(5) of the Sentencing Act 2020 states that the term of an extended sentence of imprisonment must not exceed the maximum term of imprisonment with which the offence is punishable. The maximum term for an offence contrary to section 20 of the Act is 5 years' imprisonment.

The Registrar has accordingly referred the application for an extension of 489 days for leave to appeal sentence to the Full Court. We grant both the extension of time and leave to appeal against sentence.

The offence took place in a domestic violence context. By 11 August 2023, the victim and the appellant had been in a relationship for some months. On that date the appellant was assisting the victim to move house. He stayed the night. At approximately 6.00 am the following morning, the victim accidentally bumped into the appellant whilst he was rolling a cigarette, knocking it from his hands. This caused him to become very angry. He pushed the victim onto the sofa and began beating her. Her memory of what happened thereafter was sketchy as she lost consciousness. But she recalled him looming over her saying "Shut the fuck up". Her nose was bleeding. The appellant panicked telling her to remove her bloodied top. He left the premises. The victim contacted her parents who took her to hospital. She had sustained heavy bruising to the face with "racoon eyes" (bruising around both eyes), a swollen nose, tenderness to both cheeks and a laceration to the inside of her upper lip. A CT scan showed she had sustained fractures in multiple fragments to the nasal bone with mild displacement and facial swelling.

The appellant was subsequently arrested and made "no comment" to questions in interview.

In a subsequent impact statement the victim spoke of the appellant's controlling behaviour in the months leading up to the assault. She changed her behaviour in consequence but found that no matter what she did everything would trigger his anger, making her feel constantly on edge in her own home. By January 2024 (the date of the statement) the victim still had dark under-eyes as a result of the assault and could not breathe out of her right nostril. Her sleeping was interrupted and her anti-depressant medication had to be increased. For some time she did not feel safe when she left the house and had become fearful of entering other relationships.

The appellant had a considerable record of previous domestic abuse offending. He had 12 convictions for 18 offences between February 2011 and April 2023. These included harassment, for which he received a 12-month community order in 2014, assault occasioning actual bodily harm and stalking, for which he received 2 years' imprisonment in June 2021 and three offences of breach of a restraining order, for which he received 14 weeks' imprisonment on 12 April 2023. He was subject to post-sentence supervision following release for that matter at the time of the instant offence. He also had a warning for assault occasioning actual bodily harm and battery in 2010.

The appellant maintained to the author of the pre-sentence report that he had acted in self-defence when he caused the injuries to the victim. He significantly minimised his behaviour. The pre-sentence report noted that the instant offence bore similarities with his earlier offence in 2021 of assaulting his then partner and mother of his children, causing her actual bodily harm. That offence had involved pulling her onto the sofa, punching her face and knocking her to the ground where he kicked her to the head. The stalking offence concerned that same victim, as did the three breaches of restraining order imposed when the appellant was sentenced for the assault. The appellant was recalled for breach of post-sentence supervision by failing to attend appointments during August and September 2023 which coincided with the commission of the offence subject of this appeal. On 13 September 2023, the appellant was sentenced to 14 days' imprisonment for the breach of post-sentence supervision.

The pre-sentence report recorded that following his recall for the breach of the restraining order, the appellant's attitude towards supervision and his probation officer significantly declined. He was angry for his recall and dismissive of understanding why he had been. His compliance with supervision was described as superficial as he failed to make any progress to reduce his risk having continued to offend.

The pre-sentence report recorded further instances of domestic violence against the victim in this case, subject to this appeal and others which were reported to the police but not pursued by the victims to trial. The author concluded that the instant offence formed part of long-standing violence and aggression towards intimate partners. She assessed him as at high risk of reoffending and as posing a serious harm to known adults and the public.

We have seen a prison report on the appellant's conduct since his incarceration. It gives little cause for optimism that his attitude has changed. His attitude is described as "poor" as is his compliance with the regime. He has received 27 negative entries since 4 September 2025 for refusing to attend purposeful activity and eight proven adjudications for possession of unauthorised items, refusing to comply with a direct order and intentionally endangering the health and safety of others.

In sentencing the appellant the Recorder agreed with the parties that the offence fell within category 2A of the relevant Sentencing Guideline. This afforded a starting point of 3 years and a range of 2 to 4 years' imprisonment. She placed the offence at the high end of the category by reason of the appellant's previous convictions and the lasting physical and psychological harm caused to the victim. The Recorder concluded that the appellant did pose a significant risk of causing serious harm by the commission of further offences and therefore found him dangerous. She concluded that a 4-year term of imprisonment was appropriate for the offence and then imposed the unlawful 3-year extension period.

Mr Magarian KC, who represents the appellant today although not at the court below, realistically concedes that the Recorder was entitled to find the appellant dangerous and to therefore impose an extended sentence. He takes no issue with her categorisation of the offence within the guidelines. His simple point is that the offence was unlawful. There is no issue that that is so.

Although now recognising his error, Mr Magarian in his original written grounds suggested that the correct term should have been an extended sentence of 5 years comprising a 3-year custodial term and a 2-year extension period. That too would have been unlawful. Section 280 of the Sentencing Act 2020 states that an extended sentence may be passed if either the offender has a previous conviction for an offence contained within Schedule 14 of the Act or the appropriate custodial term for the offence is one of at least 4 years' imprisonment. The appellant does not have a previous conviction for an offence within Schedule 14. An extended sentence would therefore have been unlawful if the appropriate custodial term was only one of 3 years' imprisonment.

The appellant is accepted to be a dangerous offender. An extended sentence, provided that it was unlawful, was clearly appropriate. We accordingly quash the extended sentence of 7 years and impose an extended sentence of 5 years in its place to comprise a custodial term of 4 years and an extended licence period of 1 year. To that extent this appeal is allowed.

MR MAGARIAN: There is an application for a defendant's cost order under section 16 of the 1985 Act. He applied for legal aid to launch this appeal and was refused legal aid in June 2025, whereupon the case became private until the matter was referred by the Registrar and therefore I would invite the Court to make a defendant's costs order. Your Lordship and Ladyship will be very familiar with the jurisdiction unless there are positive reasons for not making such an order it ought to be made, and although when we accept there are lots of reasons for characterising the appellant as unattractive, the appeal was properly brought and it was an unlawful sentence and it should have been brought.

LORD JUSTICE STUART-SMITH: Can you just help me because I am looking at a letter from the Legal Aid Agency to your solicitors dated 10 June 2025. So that that is about a week after he was sentenced.

MR MAGARIAN: No, that is about a year after he was sentenced -- have I got that right? Sentence was in May of the previous year.

LORD JUSTICE STUART-SMITH: We have your grounds of appeal against sentence which are dated 27 October. So, what I am not at all familiar with is the form that comes underneath CRM 5 so this says "date received, date assessed 3 and 10 June 2025".

MR MAGARIAN: Yes, that is what was being requested, that was their costs.

LORD JUSTICE STUART-SMITH: So at the moment it says costs to date £112.90; is that the costs that have been expended by 10 June?

MR MAGARIAN: My solicitor is here. May I turn my back?

LORD JUSTICE STUART-SMITH: If the gentleman who is coming down knows, come down to stand by Mr Magarian, so you can talk to him conveniently.

MR MAGARIAN: I am much obliged. £112.90 preliminary work and what was being asked for was the £1,200.

LORD JUSTICE STUART-SMITH: Work done.

MR MAGARIAN: Perspective work, instructing counsel and all the rest of it.

LORD JUSTICE STUART-SMITH: So this is a request for authority to incur the further costs.

MR MAGARIAN: Precisely those.

LORD JUSTICE STUART-SMITH: Those would all be legal costs.

MR MAGARIAN: Legal costs.

LORD JUSTICE STUART-SMITH: The request to increase was rejected because there was insufficient information to suggest that the sentence was manifestly excessive.

MR MAGARIAN: There was correspondence and it was pointed out to them it was unlawful.

MRS JUSTICE CUTTS: Mr Magarian, can I try to get it clear in my own mind, because I am not I am afraid and it is probably me. You obviously looked into this because it is an unlawful sentence. You put in your grounds of appeal and the Registrar referred the case to this Court. Usually when that happens, if there is a Registrar's referral, she will grant legal aid for the instruction of counsel.

MR MAGARIAN: I am instructed on legal aid today.

MRS JUSTICE CUTTS: You are instructed on legal aid today.

LORD JUSTICE STUART-SMITH: The order was for leading counsel only, representation order for leading counsel only.

MR MAGARIAN: The costs we are asking for is not since the referral, the costs are the what's accrued prior to that. In other words, from the failure to obtain legal aid in May or June 2025 until legal aid came back, which it did, when the matter was referred.

MRS JUSTICE CUTTS: That is quite unusual. That is why it is not unusual in a case such as this for new counsel to be instructed. But I have not heard an application of this sort to this Court before and it really is an application I think you should have put into writing so that this Court could properly consider it.

MR MAGARIAN: It is not unusual. I was instructed privately to draft the appeal, and private costs were accrued in the sum of £3,600. The appeal was submitted, it was successful and then the Registrar...

MRS JUSTICE CUTTS: We do not have the provisions in front of us today, nor were we expecting this application.

MR MAGARIAN: I did actually email the Court a few days ago setting it out.

LORD JUSTICE STUART-SMITH: Well you did as long ago as…

MR MAGARIAN: It is a normal defendant's costs order.

LORD JUSTICE STUART-SMITH: One of the few things I am conscious of in relation to defendant's costs orders is that they do not normally include legal costs.

MR MAGARIAN: I thought this Court had the power to award costs in this sort of situation. If I am wrong, I am wrong.

LORD JUSTICE STUART-SMITH: Given the somewhat uncertain nature of both sides of Bar and Bench, I direct that if you wish to make an application, you make it in writing. It will then be referred to this constitution of the Court and your application should identify clearly (a) what is being claimed and the nature of what is being claimed and (b) the provisions on which you rely in suggesting either that we have power to act as appellate court from this decision or more generally to make such an order. Could you do that within a week?

MR MAGARIAN: Yes, of course. Could I have one more go?

LORD JUSTICE STUART-SMITH: I think I would probably prefer you to do it in writing.

MR MAGARIAN: I shall do it. Thank you.

LORD JUSTICE STUART-SMITH: Ms Patel, do you want to say anything?

MS PATEL: No thank you, my Lord.

LORD JUSTICE STUART-SMITH: I think we should just mention, and I do not want to make a big thing of it, that it is rather unfortunate that no-one alerted the Recorder to the fact that he had just passed an unlawful sentence.

MS PATEL: My Lords, absolutely. It was a sentence hearing which I had to hastily join via link because I was mid trial elsewhere and I should have picked up on it and I did not. My sincere apologies.

LORD JUSTICE STUART-SMITH: We do not want to make a big fuss about it. I am sure it will not ever happen again. Thank you very much.

MS PATEL: No.

MR MAGARIAN: I apologise for the error that I have made in my grounds as well.

LORD JUSTICE STUART-SMITH: Thank you both.