R v Nathan Graham

On 19 February 2025, Nathan Graham (now aged 43) was convicted in the Crown Court at Croydon of an offence of Wounding with Intent, contrary to section 18 of the Offences Against the Person Act 1861. He had previously pleaded guilty to an offence of Possessing a Controlled Drug of class B. On 30 May 2025 he was sentenced by His Honour Judge Flahive to 12 years' imprisonment, with one day's imprisonment being imposed concurrently for the drugs offence. The judge ordered that the period during which Nathan Graham had been remanded on Qualifying Curfew of 891 days be deducted when serving that sentence. That period was determined as 445 days, a calculation to which we shall return to later in the judgment.

Leave to appeal sentence was granted by the Single Judge.

In early 2022 the appellant, who was then aged 39, was the owner of a clothing company which he promoted through social media and live video streaming. The complainant, Mr Dwayne McPherson was known to the appellant. They had mutual friends and attended the same social events. The complainant observed an Instagram live video featuring the appellant, during which the complainant became critical of the appellant's behaviour towards a mutual friend. This gave rise to an argument between the two men, preceding a fundraising party on 1 May 2022 at a home in Angelica Gardens. The appellant was aggressive towards the complainant during the course of the evening, referring to him as a "pussy". The two men were separated by others. The complainant went into another part of the property, before later returning to the kitchen area after he was told that the appellant had left. He was unaware that the appellant had picked up a bottle which he used as a weapon as he approached the complainant from behind and struck him in the face.

Police and paramedics were called and the complainant was taken to hospital. Initially, it only appeared that a five centimetre wound had been caused to the complainant's central forehead. A CT scan later revealed multiple comminuted fractures to his face and sinuses. The facial injuries were extensive and required specialist surgical intervention. After further treatment it was clear that the complainant had sustained fractures of his sinuses, his nasal bones and the medial wall of both eye sockets. He required surgery to place metal fixings in his head. The area around the injury including his forehead and nose, had changed as a result of the assault. The ongoing effects of this serious injury was at its greatest in the initial recovery period.

In his Victim Personal Statement dated 21 September 2022, the complainant described the ongoing effects of his injuries which included continuing pain, breathing difficulties through his nose and ongoing sinus issues, with pressure build up in his head and face. He described having lost some of his sense of smell as well as substantial surgical scars across his head, of which he was conscious. Treatment was also needed to improve some effects upon his vision. The complainant described psychological harm caused as a result of the attack upon him, affecting his confidence and causing greater anxiety and loss of self-esteem. His ability to work in his business as a nightclub DJ was also adversely affected, although by the date of the Victim Personal Statement this appeared to be resolving itself.

The judge concluded that this sentence fell within category A1 of the sentence guideline on the basis that it was a revenge attack and also that it had been with the use of a highly dangerous weapon. The judge concluded that the harm caused was at the most serious. The seriousness of the offence was aggravated by his previous convictions, including possession of drugs (class B), threatening behaviour and firearm offences. The judge then increased the sentence from the 12-year starting point to 14 years, before reducing it back to 12 years to reflect the mitigating factors, including references from friends and family and a note from the appellant. Accordingly, the sentence of 12 years' imprisonment was imposed, with a concurrent sentence of one day's imprisonment for the drugs offence.

On behalf of the appellant, Mr Galvin, in commendably succinct grounds of appeal, argues that the judge wrongly categorised this offence as falling within category 1A of the Guideline. It is submitted that the appropriate category was B2, with a starting point of five years and a sentence range of four to seven years. Further, it is argued that the judge was wrong to conclude that the use of a bottle, not previously broken, was not a highly dangerous weapon for the purposes of greater culpability.

On any view this was a serious, violent attack upon a complainant, who was defenceless as the appellant approached him from behind and was offering no violence. The appellant had walked away from the initial argument to obtain a bottle which he then used as a weapon to cause very serious injuries to the complainant. The central issue for us upon this appeal is whether the judge, in sentencing incorrectly, concluded that the offence involved high culpability within category A. The relevant factors identified by the judge were the use of a highly dangerous weapon, or weapon equivalent, and revenge.

Medium culpability at category B includes a factor in which a weapon or weapon equivalent was used, but which "does not fall within category A". Assistance is given within the Guideline as to the meaning of a highly dangerous weapon as follows:

The appellant argues that a distinction must be drawn between the use of a bottle which is not broken prior to the point of being used to strike the victim, and one that is. The logic is clear, that a broken bottle used as a weapon is obviously more dangerous. Whilst the determination of what is, or what is not, a highly dangerous weapon is a matter to be determined on the facts of the particular case.

The undisputed facts of this case are that the bottle was not broken before impact, when the appellant struck the complainant in the face. We are persuaded that it was an overstatement, therefore, to conclude that such a weapon was used on the facts of this case. On its own, the unbroken bottle would have more appropriately been described as a medium culpability factor.

However, the judge also reached the conclusion that the attack upon the complainant was an act of revenge: the appellant had walked away from the argument and then returned with the bottle as a weapon to be used to cause really serious injury. The judge had tried the case and heard all of the evidence. He was best placed to reach that sure conclusion, and we are not persuaded that it was wrong to do so. We are satisfied that the judge's determination of high culpability based on this factor was correct.

We turn to the assessment of harm caused by the offence. The judge concluded that the injuries caused to the complainant were properly to be assessed as being particularly grave, in the context of all other cases of causing really serious harm. It is submitted on behalf of the appellant, implicitly within the primary ground of appeal, challenging the categorisation of the offence as category 1A, that the harm caused to the complainant fell within category 2 as a grave injury, rather than category 1.

It is important to assess the harm caused in accordance with the guideline. Category 1 is the greater harm and identifies "particularly grave or life-threatening injury, injury resulting in physical or psychological harm and lifelong dependency on third party care or medical treatment, or resulting in permanent, irreversible injury or psychological condition which has a substantial and long term effect on the victim to carry out their normal day to day activities or on their ability to work." Category 2 is a medium level of harm beneath category 1 and includes grave injury not included in category 1.

We are persuaded that whilst the complainant suffered grave injury which caused significant adverse effects on the complainant's normal day-to-day activities and work, it does not appear to be necessarily permanent nor sufficient to fall within category 1 as the highest level of harm. In our judgment, and with respect to the judge, we conclude that the harm caused was within category 2 and not category 1.

Under the guideline for a category 2A offence the starting point for sentence is seven years with a range of six to ten years. The appellant's previous convictions significantly aggravated the seriousness of the offence, whilst the references from friends and family provide significant mitigation. The judge, in sentencing, concluded that the aggravating and mitigating factors balanced each other out. We will adopt the same approach. Therefore, for this offence of section 18 wounding we are persuaded that the judge, with respect, adopted too high a categorisation within the guideline. We quash the sentence of 12 years' imprisonment and impose in its place a sentence of seven years' imprisonment, thereby allowing this appeal to that extent.

Finally, we are asked by the Court of Appeal office to clarify the calculation of time served on remand by the Qualifying Curfew of 891 days. Under section 325 of the Sentencing Act 2020, half of those days are to be credited against the custodial sentence to be served, allowing for a rounding-up for half days. Therefore, the appellant's time served should have been 446 days, such that the court record will be amended accordingly.