Drew Hackett [2019] EWCA Crim 1509

Drew Hackett [2019] EWCA Crim 1509 concerned an appeal against a sentence of twelve months’ immediate imprisonment imposed by His Honour Judge Kelson QC at Sheffield Crown Court following a guilty plea to assault occasioning actual bodily harm. The Court of Appeal (Lady Justice Rafferty, Mr Justice Jeremy Baker and Mrs Justice McGowan) dismissed the appeal.

Mr Hackett had pleaded guilty to the assault, as had his co-accused Malachi Reid and Kane Chattoo. Mr Reid received an immediate term of twelve months’ imprisonment, whilst Mr Chattoo was made the subject of a suspended sentence order of the same length.

The offence occurred in the early hours of 8 August 2017 in Sheffield City Centre. Mr Hackett and his co-accused had been at a nightclub, as had the complainant and two friends. Outside the nightclub, Mr Reid punched one of the complainant’s friends to the face. The complainant intervened and he and his friends walked away. However, Mr Hackett and his co-accused pursued them. Mr Reid struck at the complainant and Mr Chattoo punched him to the face. The complainant fell to the ground, whereupon Mr Hackett kicked him twice to the head. All three offenders then ran off. They were traced through CCTV footage and made no comment when interviewed by police. The complainant was taken to hospital with bruising, a wound to one eyelid, bruising to his jaw and a chipped tooth. The eye injury resulted in traumatic hyphema which affected his vision and created a risk of retinal detachment. In his victim impact statement the complainant described how he had been a relaxed individual but was now anxious and easily frightened, did not go out in the city centre and had undergone counselling.

Mr Hackett had one previous court appearance at Sheffield Crown Court on 9 April 2018, when he had been sentenced to a total of twenty-seven months’ imprisonment for unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 and possessing cocaine. Those offences took place in the early hours of 26 November 2016. He had used a bottle to attack an individual at a nightclub, inflicting injuries requiring twenty-two stitches to repair damage to an artery and causing a fractured nose. A pre-sentence report contrasted Mr Hackett’s confrontational attitude at the time of the wounding with the remorseful attitude he now exhibited. During his earlier imprisonment he had completed rehabilitation courses. Since release he had not re-offended, attended all supervision appointments and formed a new relationship as a result of which he was about to become a father.

The sentencing judge determined that the assault was a Category 1 offence under the relevant sentencing guideline. Greater harm was indicated by the sustained nature of the assault. Higher culpability was indicated by the use of a shod foot to cause the injuries. Aggravating factors included the fact that the assault took place in the context of a group attack at night in the city centre and whilst Mr Hackett was under investigation for the earlier incident of violence on 26 November 2016. The judge accepted the mitigation set out in the pre-sentence report and accepted that there had been significant delay in prosecuting the assault, which had been the subject of a postal requisition procedure. Consequently, Mr Hackett was now being sentenced for the wounding and assault on two separate occasions when otherwise they may have been dealt with together. The judge determined that prior to any reduction for plea the assault would have merited two years’ imprisonment. He reduced this by twenty-five per cent to reflect the timing of the guilty plea and further reduced the period to twelve months to take account of the delay and the principle of totality.

Mr Gould, on behalf of Mr Hackett, argued that the twelve months’ immediate imprisonment was either wrong in principle because it ought to have been suspended, or alternatively manifestly excessive. He pointed out that since commission of the assault Mr Hackett had served a significant period of imprisonment for the wounding and relied upon his progress since release. He noted the delay in prosecuting the assault and argued that taking the wounding and assault offences together the effect of the judge’s sentence was to impose a total of three years and three months’ imprisonment, which was excessive.

The Court of Appeal held that the assault was of some seriousness. It involved late night violence in the city centre when a group of males attacked another group for no apparent reason. In the course of the attack the complainant was put to the ground and kicked in the face by Mr Hackett on two occasions, as a result of which he suffered a potentially serious physical injury which also had an adverse psychological effect. The judge was correct to determine that this was a Category 1 offence within the relevant sentencing guideline, with an appropriate starting point of eighteen months’ custody and a category range of one to three years. The judge was also correct in concluding that the aggravating factors justified a period of two years’ custody prior to reduction for plea. The court noted in parenthesis that had Mr Hackett chosen to admit the offending when first interviewed, the delay might have been avoided.

The Court of Appeal acknowledged that Mr Hackett had spent his time in custody constructively and had made progress since release both in his attitude towards his offending and in his personal circumstances. However, the real questions were, first, whether the total sentence of three years and three months’ custody for the wounding and assault taken together resulted in a manifestly excessive term and, secondly, whether the period of imprisonment should have been suspended. As to the first question, the court acknowledged that as at the date of the sentencing hearing on 9 April 2018 Mr Hackett had no previous convictions. However, both the wounding and the assault were serious examples of their kind, involving late night unprovoked city centre violence in which significant injury was caused by the use of weapons or equivalent items. Both offences were Category 1 offences with aggravating factors justifying a significant increase from the starting point, which in the case of the wounding was three years’ custody. The sentencing judge was alert to these factors and the reduction from eighteen months to twelve months sufficiently took account of the principle of totality. As to the second question, despite the mitigating factors relied upon, in view of the nature of the attack, which included the deliberate kicking of the complainant in the face whilst he was laid on the ground, the judge was entitled to determine that appropriate punishment could only be achieved by immediate custody. Within the relevant sentencing guideline, the judge was justified in imposing an immediate rather than a suspended period of custody.

In short, the sentence of twelve months’ immediate imprisonment was neither manifestly excessive nor wrong in principle and the appeal was dismissed.