Dale Hayward & Steven Weaving [2019] EWCA Crim 1501
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In Dale Hayward & Steven Weaving [2019] EWCA Crim 1501, the Court of Appeal (Lady Justice Rafferty DBE, Mr Justice Jeremy Baker and Mrs Justice McGowan DBE) reduced immediate custodial sentences for assault occasioning actual bodily harm to terms which resulted in the immediate release of both appellants.
Mr Hayward and Mr Weaving had pleaded guilty at Derby Crown Court to common assault and assault occasioning actual bodily harm. On 13 May 2019 they were each sentenced to 11 months’ detention in a young offender institution for the latter offence, with no separate penalty for the former. Their co-accused Mr Bryan and Mr Head received suspended sentences for the same offence, while Mr Hussain received a community order for threatening behaviour. Both appellants appealed with permission.
The offences occurred late at night on 18 November 2017 in Belper, Derbyshire. The 16-year-old complainant was walking along the road when the appellants and their co-accused, who were in a stationary motor vehicle, shouted his name. When he approached, Mr Hayward alighted and struck him at least twice to the head. Mr Weaving and others joined in, with Mr Weaving punching the complainant numerous times. The complainant was able to escape. This comprised the common assault. Mr Hayward and some others, though not Mr Weaving, followed and surrounded him. A second attack was launched involving multiple punches to his head. The complainant fell to the ground and the attack continued with further punches to his head and kicks to his legs. He managed to escape again. This comprised count 2, the assault occasioning actual bodily harm to which Mr Hayward had pleaded guilty. The complainant, his face now injured and bleeding, made his way to a public house and sought assistance. Despite this, Mr Weaving approached and forcefully punched him to the face, knocking him to the ground. This comprised count 3 to which Mr Weaving had pleaded guilty. The complainant suffered various soft tissue injuries, including a possible nasal fracture from count 2 and an undisplaced fractured jaw from count 3.
Although the incidents were reported to police on 18 November 2017, Mr Hayward was not interviewed until 28 March 2018. Despite his admissions about his own role and that of his co-accused, the appellants were not summonsed until 8 February 2019. Although Mr Hayward was 17 and Mr Weaving 18 at the time of the offences, they were respectively 18 and 19 when sentenced. Neither had previous convictions at the time of the offending, though both had been dealt with by the courts prior to sentencing for subsequent offences. Mr Hayward had been made subject to a referral order for aggravated vehicle taking, and Mr Weaving had been conditionally discharged for possession of a class B controlled drug. A pre-sentence report in respect of Mr Hayward noted that he acknowledged assaulting the complainant after drinking excessive alcohol and was remorseful. He now had full time employment, posed a medium risk of harm to the public but presented a low risk of reoffending. His response to the referral order was good. Two written references from family members stressed the positive aspects of his personality and the beneficial effects of his increasing maturity since the offences.
The judge determined that both counts 2 and 3 were Category 1 offences within the relevant sentencing guidelines, such that the appropriate starting point for an adult offender would have been 18 months’ custody. He noted the offences were aggravated by the fact that the appellants were intoxicated with alcohol and the offences took place late at night in the town centre. He indicated he intended to increase the sentence to reflect the criminality involved in the common assault. In Mr Hayward’s case the judge acknowledged that due to his age at the date of the offences it was correct to bear in mind the Sentencing Council guideline in respect of sentencing children and young people. He also acknowledged delay which was not the fault of the appellants and that both had matured during the intervening period. However, despite these matters he considered that appropriate punishment could only be achieved by immediate custody.
Miss Hardy, for Mr Hayward, argued that the sentence failed sufficiently to take into account the appellant’s age at the date of the offences. She pointed out there had been considerable delay prior to the issue of the summons and that in the meantime the appellant had made positive improvements in his life, such that any sentence of custody ought to have been suspended. Miss Thandi, for Mr Weaving, argued that the sentence failed to take sufficiently into account his relatively young age, his lack of previous convictions and the period which had elapsed since the offences.
The court held that these were unpleasant offences in which a young man of 16 was repeatedly attacked by a group of males late at night in the town centre, leaving him with painful and, in relation to count 3, serious injury. The judge was entitled to determine that both counts 2 and 3 were Category 1 offences. As to count 2, this was a sustained assault. Not only did Mr Hayward play a leading role as part of a group attack, but there was the use of a weapon equivalent, albeit not by him, and albeit that the kicking was aimed at the complainant’s leg and was not the main characteristic of the offence. In relation to count 3, not only was the injury sustained serious in the context of the offence but Mr Weaving deliberately caused more harm than was necessary for the commission of the offence. The appropriate starting point for an adult was 18 months’ custody with a category range of between one and three years. Moreover, not only were the offences aggravated by the factors indicated by the judge, but he was entitled to reflect the criminality involved in count 1 by increasing the period imposed on counts 2 and 3.
In Mr Hayward’s case, given his age at the time of the offences, there was a need for the judge to have regard to the matters set out in the Sentencing Council’s guideline relating to sentencing children and young people. One of the matters to which consideration was required was that the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged between 15 and 17. In the court’s judgment, if these offences had involved adult offenders, then prior to any reduction to reflect the timing of the pleas of guilty, a term of two years’ custody would have been appropriate, such that if a two-thirds reduction was applied to this figure, then the resulting period of 16 months, which when reduced by 25 per cent to take into account the timing of the pleas of guilty, resulted in a period of 12 months’ detention. In this regard, Mr Weaving, who was in fact an adult at the time of the offending, may have considered himself fortunate that the judge appeared to have made a similar reduction in his case. However, the court noted there was only a year’s difference in age between Mr Weaving and Mr Hayward and the judge may well have been of the view, in line with the observations of the Lord Chief Justice in Attorney General’s Reference (R v Clarke and others) [2018] EWCA Crim 185, that there was little difference in their levels of maturity.
In those circumstances there could be no complaint about the length of the periods of detention imposed upon either of the appellants as imposed by the judge. This left the question as to whether it was wrong in principle for the judge to have imposed the periods of detention immediately, as opposed to ordering their suspension. It was in this context that the court considered the issue of delay had its most potent effect. First, there was indeed a significant period of delay between the commission of the offences and the issuing of the summonses. Secondly, the delay was not in any way the fault of either of the appellants. Thirdly, during the intervening period both had matured significantly. Fourthly, neither had previous convictions at the time of the offending. Fifthly, both were young. Sixthly, the nature of the assault was not one which necessarily demanded the imposition of an immediate custodial sentence as may often be the case where there is deliberate kicking aimed at a person’s head whilst they are on the ground. In those circumstances, the court considered that having regard to the Sentencing Council’s guideline concerning the imposition of community and custodial sentences, it would have been possible for the court to have suspended the terms of detention in both cases.
However, events had moved on since the original sentencing exercise. Mr Hayward had already been released on home detention curfew and such was the length of the period imposed upon Mr Weaving that he was likely to be released from the sentence of detention relatively soon. In those circumstances, the court did not consider it appropriate to suspend the periods of detention at that juncture, as much of the punitive element of the sentences had already been effected. Therefore, at that stage, the court substituted for the sentence of 11 months’ detention which had been imposed upon counts 2 and 3 periods of detention in a young offender institution of six months in each case. Mr Hayward had already been released on home detention curfew and would not be required to return to custody. The purpose of the sentence imposed on Mr Weaving was to ensure his immediate release from custody.
In short, the court allowed the appeals to the extent of reducing the sentences of 11 months’ detention to six months each, ensuring that Mr Weaving was released immediately and that Mr Hayward remained released, but held that immediate custody had been appropriate in principle.