R v Tyrone Joseph Vassel

MR JUSTICE FORDHAM: 1 On 23 September 2019 the applicant (who is now aged 22) came to be sentenced by His Honour Judge Challinor (“the judge”) at Stafford Crown Court. The applicant had pleaded guilty on 20 June 2019 to three offences committed on 29 August 2018. (1) Causing grievous bodily harm with intent, contrary to section 18 of Offences Against the Person Act 1861 (count 1). (2) Assault occasioning actual bodily harm, contrary to section 47 of 1861 (count 2). (3) Affray, contrary to section 3(1) of the Public Order Act 1986 (count 3). There was a co-defendant, Matthew Kerr. Kerr pleaded guilty at the pre-trial preparation hearing (“PTPH”) on 2 January 2019 to the lesser offence of causing grievous bodily harm without intent (count 1). Kerr subsequently changed his plea to guilty in relation to assault occasioning actual bodily harm (count 2) and affray (count 3). Kerr was sentenced, at the same time as the applicant, to 18 months' imprisonment overall. 2 In the early hours of the morning of 29 August 2018 the applicant and Kerr were both in the centre of Stafford. As the applicant walked towards the Casa nightclub, intending to go to the local kebab shop on the way, both he and Kerr attacked Callum Hodgson who was standing outside the kebab shop waiting for a friend. They punched Mr Hodgson in the face. He sustained a cut to his top lip and a swelling under his right eye. That was the count 2 offending: ABH. The applicant and Kerr then entered the kebab shop and started arguing with customers, picking a fight with them and threatening them with violence. The shop keeper asked them to leave. That was the count 3 offending: affray. The applicant and Kerr then moved on to the Casa nightclub where they encountered Thomas Ward standing outside the club. The three men appeared to engage in an argument before punches were thrown. Kerr punched Mr Ward, who fell to the ground. While Mr Ward was on the ground, the applicant stamped on Mr Ward's head. That was the count 1 offending: GBH. Both the applicant and Kerr were chased off by the nightclub's door staff, who attended to Mr Ward. Having left Mr Ward unconscious, the applicant and Kerr ran off and tried to get in a taxi, but were turned away. They then returned to the scene and became aggressive with the door staff. The police had been called to the nightclub by the town centre CCTV operator, the CCTV having captured the attack on Mr Ward. Police officers arrived and arrested the applicant and Kerr after a short foot chase with the use of a police dog. 3 We have been assisted by the written and oral submissions by counsel Mr Rudge. In the grounds of appeal Mr Rudge has described what the CCTV showed in relation to the attack on Mr Ward as follows: "CCTV shows what appeared to be an argument between all three before punches were thrown. Kerr punches Mr Ward and knocks him to the ground, seemingly unconscious. Whilst on the floor, the applicant can be seen to stamp on Mr Ward's head." An up-dating report dated 14 June 2019 from the probation service, which was before the judge, said this: "CCTV shows both the applicant and Kerr assaulting Mr Ward outside the nightclub. Kerr is seen to deliver a punch that knocked Mr Ward unconscious, prior to hitting the ground. And the applicant is seen to stamp on Mr Ward's head whilst he was lying unconscious on the floor.” The judge confirmed that he had viewed the CCTV before proceeding to sentence. 4 Mr Ward sustained very serious head and facial injuries which were life threatening. He suffered a bleed onto the brain, as well as a fractured jaw and cheek. He had 57 staples to his head as a result of surgery. The judge had two victim personal statements from Mr Ward dated 13 December 2018 and 9 August 2019. The case had come before the judge for sentence on 23 August 2019 when it was decided that up-to-date medical evidence was appropriate. That medical evidence arriving out of an examination of 6 September was read out in court by prosecution counsel. In his sentencing remarks, the judge said this: "Mr Ward sustained very serious head and facial injuries. The injuries were life threatening. He suffered a bleed onto the brain as well as fractures to his facial bones. He complains that he still has a reduced grip, is somewhat deaf in his left ear. He complains that his speech and balance have been affected and that his right eye waters. He still suffers short-term memory loss and he has been left, understandably, very nervous about going out in public, particularly at night. His statement of 9 August of this year shows that he is still affected by this attack some twelve months later. The latest examination of him by a doctor shows that he has made a significant and substantial recovery, and as a result, I have reduced the sentences that I have thought were otherwise appropriate.” 5 The applicant was aged 19 at the time of three offences. He had one previous conviction for possession of a knife in a public place, an offence committed in March 2018. The Staffordshire Magistrates' Court on 11 May 2018 had imposed an eight-week custodial sentence for that offence, suspended for twelve months. The offences on 29 August 2018 put the applicant in breach of that suspended sentence order, a matter which was also before the judge. From 29 August 2018 onwards the applicant was remanded on bail with an electronically monitored curfew condition, a qualifying curfew counting as time served pursuant to section 240A of the Criminal Justice Act 2003. 6 The judge's approach to sentencing the applicant involved five identifiable stages. The first stage was that the judge focused on the section 18 offence (occasioning grievous bodily harm with intent), as what the prosecution counsel had described as “the lead offence”, to be addressed by reference to the General Guideline: Overarching Principles and the Definitive Guideline on Assault. That was the first stage. The second stage involved the judge addressing the appropriate offence category pursuant to the Assault Guideline. The judge identified the appropriate category as Category 1 with its starting point of twelve years' custody and its range of nine years to sixteen years' custody. That was stage two. The third stage involved the judge identifying the appropriate sentence prior to reduction for guilty plea, having taken into account factors increasing or reducing the seriousness and personal mitigation. The description in the grounds of appeal in relation to this third stage recognises that the judge arrived at nine years before applying credit for plea. The fourth stage involves the appropriate reduction for guilty plea. This took the judge from the nine years at the third stage to a sentence of eight years. Finally, the fifth stage addressed the sentences for the two other offences, the breach of the suspended sentence order, the question of whether sentences should be consecutive or concurrent and the question of totality. The judge said this, in relation to the fifth stage: "Mr Rudge has argued that I should look at the totality of the sentence. I could add up the sentences to make a very long sentence indeed, but I must look to the Totality Guideline and impose a sentence which in the circumstances is just and proportionate. In those circumstances, the sentences will be as follows: there will be a sentence of eight years' imprisonment for the section 18 offence; the assault occasioning actual bodily harm, six months concurrent; for the affray, 12 months, concurrent; and the suspended sentence, eight weeks, concurrent. All of that comes to eight years." The judge explained at the end of his sentencing remarks, "Eight years is the least sentence I can impose for this very serious offence." 7 The grounds of appeal make no complaint about the first stage. Reference is made to the length of sentences on counts 2 and 3 and the activation of the entirety of the eight weeks' suspended sentence, but the grounds of appeal expressly state that, since all of these were ordered to run concurrently at the fifth stage, about which no complaint is made, no issue is taken in relation to those. As to the second stage, the grounds of appeal again make no complaint. They expressly recognise that the judge identified the correct offence category, Category 1, and starting point, 12 years, with its category range of 9 years to 16 years' custody. As to “harm”, the applicant accepts that this matter was greater harm due to the injury sustained by the victim Mr Ward. As to “culpability”, the applicant accepts that culpability was high due to the use of the foot, a shod foot, as it is described in the guideline. 8 A ground of appeal had been put forward and has been maintained today relating to the fourth stage, the reduction for guilty plea. Mr Rudge initially submitted that what the judge did in his sentencing remarks was to give credit of 10 per cent. What the judge actually said was this: "I am asked to give you more credit than 10 per cent, which I do.” The reduction, as Mr Rudge accepts, was from nine years to eight years. The single judge said that this was credit of “a little over 10 per cent”. We agree. The grounds of appeal contend that it should have been “at least 15 per cent”, given the timing of the plea. There is nothing in that point and there is nothing, in our judgment, in any criticism of the “little over 10 per cent” that the judge gave. The applicant had pleaded not guilty at the PTPH on 2 January 2019 and a trial date was fixed for 25 March 2019. The trial did not proceed on that date due to lack of court time. A new trial date was fixed for 28 May 2019. It was at that stage that the applicant indicated that he wished to change his plea to guilty and the new trial was vacated. In all those circumstances, which were well appreciated by the judge, there was no entitlement to a reduction of “at least 15 per cent”, as it is put in the grounds of appeal, and there was no error of approach by the judge in giving “a little over 10 per cent”. 9 A further ground of appeal was put forward and has been maintained, though clarified, relating to qualifying curfew. It was submitted in the grounds of appeal that there was a relevant period of curfew which should have counted towards the sentence served, instead of being taken into consideration in the overall sentencing by the Judge. There is nothing in that point, once one clarifies what the actual position and consequence of the judge's sentence is. The judge made reference to having ‘taken fully into account the curfew that the applicant had been subjected to’, which he identified as being appropriately ‘about six months’. That description matches the credit for time spent on bail with an electronically monitored curfew condition pursuant to section 240A of the 2003 Act. The order for imprisonment records, as do we, that the court directed, pursuant to section 240A(2), that 196 days would count as time served towards the sentence of 8 years. The judge's remark about taking the curfew days into account did not have the consequence (and seems very unlikely to have had the intention) of factoring those days into the calculation of the eight years. There can therefore be no complaint arising out of that. The position was clarified in the sentence order, and has just been clarified again by us. There was previously an electronicallymonitored curfew, as a constituent element of the suspended sentence, but the judge activated the custodial term and, as we have explained, the applicant disavows any point arising out of that. 10 What remains, then, is the third stage. The remaining grounds of appeal submit in essence that the judge's approach in arriving at the sentence of nine years before reduction for guilty plea produced a manifestly excessive sentence. In the grounds of appeal the following five points were emphasised: one, that the applicant had no previous convictions for assault; two, that he was young, aged 19 at the time of the offending; three, that he had shown remorse; four, that the on-going effect upon the victim involved no ongoing disability and five, that the offence involved a single blow. We will come back to the single blow point. In his oral submissions Mr Rudge has emphasised the personal mitigation, including what he characterises as the applicant's full co-operation with probation and full attendance at court hearings. The first four of the five points were specifically referred to in the judge's sentencing remarks. He said, "You are relatively lightly convicted." He said, "You are still relatively young. He also said, "I accept that you are remorseful." So far as on-going effect on the victim not involving an on-going disability, the judge said the “latest examination by a doctor shows that Mr Ward has made a significant and substantial recovery", in a passage which we have already quoted. These were all taken into account by the judge, as were other points. The judge accepted that there had been delay in the case which was not the applicant's fault. He was clearly well aware of co-operation and attendance on the part of the applicant. He also referred to the fact that the applicant's partner was expecting a baby. But he also referred to the fact that the applicant was subject to a suspended sentence and supervision at the time of these offences. 11 We turn to the fifth point, the single blow. At the start of his sentencing remarks, the judge had said this, as recorded in the transcript: "You then moved on to the Casa, where you encountered Thomas Ward, again, someone you did not know who was no threat to you. You both attacked. He was punched by you, Kerr. He fell to the floor, where you, Vassel, stamped repeatedly on his head. He sustained very serious head and facial injuries." The reference to “stamped repeatedly” was picked up on by the single judge who, when refusing leave to appeal, said: "This was not a single blow. You stamped on the victim's head repeatedly, causing him substantial injury." In subsequent exchanges with the Criminal Appeal Office, the applicant's representatives pointed out that the prosecution case, borne out by the CCTV footage, had been that there was only one stamp to Mr Ward's head. The CAO advised that the application for leave to repeal could be renewed, and so it has been. In written submissions (relating to why no loss of time order ought to arise in this case if the renewal application is unsuccessful), the purpose of the renewed application was described as follows: "The applicant seeks clarification solely as to whether the single judge's view on the merit of the appeal against sentence is altered on the basis that there was no repeated assault." That point has remained a point of focus in the oral submissions before us. Mr Rudge submitted if this case were taken as an offence of repeated stamping on the head, that could stand to have a significant effect on the seriousness, and therefore on overall sentence. 12 The starting point in dealing with that is the CCTV. We explained at the beginning of this judgment that the CCTV shows that there was a single stamp to the head of Mr Ward by the applicant. We are quite satisfied that that fact, viewed independently and viewed alongside the other features of this case, does not arguably render the sentence imposed by the judge manifestly excessive or wrong in principle or involving any error of approach. We will explain why. It is true that the judge used the phrase, "stamped repeatedly on his head" at the beginning of the sentencing remarks. It is, however, very clear from the judge's later reasoning that he was sentencing the applicant on the basis that there had been a single stamp to Mr Ward's head. The critical passage in the judge's reasoning is as follows: "This really takes me to a sentence of nine years. You are relatively lightly convicted. You were subject to a suspended sentence and supervision at the time of these offences and the stamp to Thomas Ward's head was when he was clearly unconscious and very vulnerable." The judge, clearly and unambiguously, referred there to “the stamp” as a single stamp to the head. Moreover, that was linked to the singular word "was" in the same sentence and in the phrase "the stamp … was when …". This part of reasoning was when the judge was explaining how he had approached the third stage, arriving at nine years. The judge had seen the CCTV. The judge was sentencing the applicant on the basis that there had been a single stamp to the head. The factually incorrect description, found near the start of the remarks, uncorrected by counsel, had thus stood corrected by the judge himself at the crux of the sentencing assessment. The judge appreciated the correct position and showed that he did so. There was no material misapprehension of the true factual position, but a clear statement of a correct appreciation. Nor was there any error of approach. The judge put the fact that it was one stamp to the head alongside all the other features of the case. As the judge's description explained, this was a stamp to the head of a victim who had been punched by the co-defendant, Kerr, who had fallen to the ground clearly unconscious and who was very vulnerable. The judge had an evaluative exercise of sentencing judgment to undertake at the third stage, having regard to the relevant offence category, starting point and range at which he had arrived at the second stage. He needed to consider all relevant factors as to seriousness and reflecting personal mitigation. That is what he did. We are quite satisfied that there is no arguable basis on which it can be said that nine years, prior to reduction for guilty plea, was manifestly excessive in all the circumstances of this case. 13 Finally, we accept, in the light of the characterisation by the single judge and the advice of the CAO, that the unsuccessful renewal of leave to appeal should not lead to a loss of time order. As to the three-day extension of time which the application for leave to appeal necessitated, like the single judge, we would have extended time, had there been merit in the application for leave to appeal in the light of the explanation put forward by the applicant's solicitors. There are no properly arguable grounds of appeal against sentence. This renewed application is dismissed. _______________