Neutral Citation Number:
[2015] EWCA Crim 659
Case No:
2014/4976/A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 24 March 2015
B e f o r e
:
LORD JUSTICE GROSS
MRS JUSTICE ELISABETH LAING DBE
THE RECORDER OF EXETER
HIS HONOUR JUDGE GILBERT QC
(Sitting as a Judge of the CACD)
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R E G I N A
v
SIMON ELKINGTON
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Computer Aided Transcript of the Stenograph Notes of
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Mr D Murray
appeared on behalf of the
Appellant
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J U D G M E N T
1.
THE RECORDER: On 24th July 2014 in the Crown Court at Warwick, the appellant pleaded guilty to assault occasioning actual bodily harm and assault by beating. On 3rd October 2014 Mr Recorder Evans sentenced him for the assault occasioning actual bodily harm to an extended sentence of five years with 44 months as the custodial element and 16 months extended licence. For the assault by beating the sentence was four months' imprisonment concurrent. There was a victim surcharge order of £120.
2.
The appellant appeals against sentence by leave of the single judge, Green J.
3.
The fact are these, taken briefly. The appellant was in an on/off seven year relationship with the complainant, Kay Jones. She was 26, he was 42. They both lived at a Salvation Army hostel. On the evening of 14th April 2014 the appellant started an argument with Kay in the hostel's reception area. He called her a prostitute and said she should go and sell herself. She laughed and he pushed her into a wall. She hit the wall and slumped to the floor, feeling dizzy. She went upstairs to her room and the appellant followed, shouting abuse through the door. She ran out of the room, trying to get out onto the street. He followed her outside and punched her in the eye. She fell down and the appellant kicked and punched her while she was on the ground.
4.
The following day the appellant knocked on the door of the complainant's room. She did not know it was him and opened the door. He pushed his way in and knocked her over. She fell to the floor and he tried to hit her. He did not manage to strike a hard blow. That part of the incident relates to count 2.
5.
The complainant did not report the offence but had a problems with the vision in her left eye and went to accident and emergency later that day. She had bruising and swelling around the eye and also bruising to her arms. She was in pain where she had been kicked in the ribs. The doctor treated her for the bruising. The appellant was arrested on 16th April. In interview he blamed the complainant, saying that she had assaulted him.
6.
He is a man who has appeared before the courts on 37 previous occasions for 121 offences between 1983 and 2012. His relevant violent offences include a conviction for manslaughter in 1997 for which he was sentenced to eight years' imprisonment, common assault in 2003 for which he was sentenced to three months' imprisonment, assault occasioning actual bodily harm in 2005 for which he received an extended sentence of 17 months and one offence of section 20 wounding in 2012 for which he received an extended sentence of 56 months. He was currently on recall for this due to the present offences. Earlier violent offences included in 1993 convictions for affray, assaults on police and actual bodily harm for which he received concurrent sentences of three months in a young offender institution. There were further assaults on the police in 1995, 1996 and 2004. He has also received a custodial sentence for theft, burglary of a dwelling and a non-dwelling and in 1994 was sentenced to 15 months' imprisonment for blackmail.
7.
In the pre-sentence report it is said that the appellant accepted responsibility for his actions but minimised his culpability by saying he could not recall the offence due to the alcohol which he had consumed, combined with medication received on prescription. He did appear to show remorse. Alcohol was a significant feature in his past for violent offending.
8.
He had been made the subject of a range of sentencing options in the past, but this had done little to deter him from re-offending. He was currently recalled. It was his second recall for the section 20 wounding on the extended licence period for violent offending under the influence of alcohol. He was assessed as presenting a high risk of re-offending and a high risk of harm to his current partner and members of the public. He could not be safely managed in the community. Intervention was required to address his thinking skills deficit, substance abuse and relationship issues. An extended period of licence would ensure that work completed in custody could be demonstrated in the community.
9.
The grounds of appeal settled by counsel are that firstly the judge took insufficient account of the five-and-a-half months in custody pending sentence when recalled on licence. Secondly, the judge took too high a starting point in relation to the assault occasioning actual bodily harm.
10.
With regard to the first ground, it is not right in this case to reduce the sentence because of time spent in custody to date on recall unless there has been excessive delay. The offence was on 14th April 2014. The appellant pleaded guilty on 24th July 2014. Sentence was then adjourned to assess dangerousness and sentence was passed on 3rd October 2014. In our judgment that time does not amount to excessive delay.
11.
The second ground of appeal is that the custodial sentence of 44 months following a guilty plea at the PCMH, to which 25 per cent credit was due, puts it within a month or so of the maximum sentence for assault occasioning actual bodily harm of 60 months. Whilst we are of course able to be satisfied, and it is right to be satisfied that it would be contrary to the interests of justice to follow the guidelines in this case, we therefore look at the sentence as passed. The record of the appellant in our judgment does not justify passing such a long custodial sentence as was passed in this case. If the reason for so doing was for fear of further violence then it is open to extend the licence period and that is what was done for good reason on the evidence before the court.
12.
We therefore allow the appeal by quashing the custodial element of 44 months, substituting for it a sentence of 36 months, but with the extended period of licence extending to 24 months, so that the extended sentence itself remains one of five years.