Jamal Poku [2019] EWCA Crim 1209
Summary
Jamal Poku v Regina [2019] EWCA Crim 1209 was heard by the Court of Appeal (Criminal Division) presided over by His Honour Judge Picton, sitting as a judge of the Criminal Division, who dismissed the appeal against a sentence of seven years’ imprisonment for inflicting grievous bodily harm with intent.
Mr Poku was convicted after trial on 6 November 2017 of an offence contrary to section 18 of the Offences against the Person Act 1861 and was sentenced immediately to seven years’ imprisonment. He appealed with leave of the single judge.
The offence took place on 7 March 2016 when the appellant went to buy cigarettes from a local convenience store. He took exception to the shop assistant’s request for valid identification before serving him, claiming he had previously been served without such a demand. He armed himself with a wine bottle from the shelf and struck the victim over the head, causing the bottle to smash and the victim to sustain cuts. A struggle ensued during which the appellant took hold of a second bottle with which he struck the shop assistant further blows, causing additional lacerations. Eventually the shop assistant was able to wrestle the appellant out through the door. The victim sustained six significant lacerations to his head ranging from three centimetres to fifteen centimetres in length. A head scan revealed a left frontal laceration with adjacent locules of air but no acute inter-cranial haemorrhage or fractures. The wounds were cleaned and sutured and he was discharged in the early hours of the following morning. In a victim personal statement the shop assistant described losing a great deal of blood, receiving thirty-five stitches, injuring his ankle and breaking a tooth. He referred to being unable to move his left eye properly, his children being upset by his appearance, being unable to return to work, and people finding the scars on his face alarming. Photographs depicted graphically the amount of blood shed.
Shortly after police commenced their investigation the appellant’s mother contacted the emergency services to report that her son had come home covered in blood and told her he had lost his temper and hurt a shopkeeper. Upon arrest the appellant told officers he had been in a fight with the victim, smashed two bottles over his head and punched him, stating he hit him with a bottle multiple times and told him not to come for him but he kept coming. In formal interview the appellant declined to answer questions. At trial he claimed self-defence. The defence statement referred to incidents in his past when his brother had been shot and stabbed, causing the appellant trauma and long-term mental anguish. It also referred to the appellant having been a victim of crime when a car was deliberately driven into him causing injuries to his leg and body. The defence asserted that the appellant was stressed by these issues and that his condition had been aggravated by his mother’s illness.
The appellant was twenty-two years of age at the date of sentence and of previous good character. There was no pre-sentence report and the Recorder refused a defence application for an adjournment to investigate whether the appellant was subject to autism. The court was aware that the defence had obtained a psychiatric report addressing fitness to plead but was told that it had not investigated whether the appellant was on the autism spectrum. The Recorder queried the potential relevance of an assessment by a psychologist and proceeded to sentence without reports.
The Recorder assessed the offence as falling within Category 1 of the section 18 assault guideline on the basis that this was a sustained attack causing a large number of wounds to the victim’s head and that the victim was lucky to have come out of it as well as he did. The Recorder commented that the appellant had used a series of weapons and thus there was both greater harm and higher culpability. The starting point was identified as twelve years with a category range of nine to sixteen years. The Recorder positioned the offence at the bottom of the category range, commenting that he perceived there was a risk that such a conclusion might be criticised as too lenient. He then discounted the sentence by a further year for the appellant’s good character and because of the possibility of a peripheral or very marginal degree of autism, repeating his conclusion that he did not need a report on the issue. The Recorder stated he was going to discount the sentence further because the appellant’s mother had reported what he had done to the police, reducing it by another year. This resulted in a final sentence of seven years, two years below the category range into which the offending fell.
The grounds of appeal originally argued that the Recorder erred in determining this was a Category 1 rather than a Category 2 case. At the hearing Miss Bald, appearing for the appellant, submitted the case fell into Category 3. Reliance was placed on the judgment in R v Smith [2015] EWCA Crim 1482. It was submitted that the greater harm criterion was not made out because the injuries sustained were not serious in the context of a section 18 offence and two distinct blows in the course of what took place did not amount to a sustained and repeated assault. Additionally, counsel sought permission to argue an additional ground based on two reports obtained post-sentence addressing potential diagnoses of autism, PTSD and learning disability. It was submitted that the absence of this material led to incorrect categorisation of the offence and thus a manifestly excessive sentence. Although higher culpability by reason of use of a weapon was accepted, the defence argued that the medical evidence supported a lower culpability factor based on the existence of a mental disorder or learning disability linked to the commission of the offence.
The court watched the CCTV footage of the attack. Whilst the two blows to the head appeared to have been struck towards the beginning of an extended struggle, the two men spent some time violently wrestling together as the shop assistant attempted to remove the appellant from the premises. The court considered the injuries were relatively severe and that given the force with which the appellant struck the complainant, causing each bottle to smash on impact, it was remarkable that the consequences were not worse. The court considered the case of Smith, in which it was held that two blows, one of which was not said to amount to a section 18 offence, would not normally amount to a sustained or repeated assault, with the court acknowledging that each case entails a very fact-specific assessment. The court was persuaded that whilst coming very close to the sort of sustained incident which could put the offence into Category 1, the nature of the attack did not on its own quite qualify for a finding of greater harm by reference to that factor. The court was assisted by the case of Sowter [2018] EWCA Crim 1332 on the question of whether the injuries might merit a finding of greater harm. In Sowter the court quoted Smith to the effect that harm and violence must be significantly above the serious level of harm normal for section 18 to justify Category 1 and emphasised that the focus is on harm caused and also harm intended. The court in the present case considered that the level of harm sustained combined with the number of blows in the context of what was undoubtedly a lengthy struggle, which was indicative of intention to cause serious harm, could arguably justify a finding of greater harm. However, the court was persuaded that in the context of the stark difference between starting points the offence should be assessed as coming within lesser harm, albeit only by the finest of margins. The combination of two factors, each of which very nearly merited a finding of greater harm, remained relevant when assessing where the case should be positioned in the relevant category range.
As to the two post-sentence medical reports, the court considered whether it should receive them at all, referring to Rosen [2018] EWCA Crim 2164, which confirmed the court’s function is to review sentences passed below and not to conduct a sentencing hearing and that where fresh evidence is relied upon the provisions of section 23 of the Criminal Appeal Act 1968 apply. The court noted that at the time of trial the defence possessed at least the psychologist’s report but it had never been served, although it was suggested at the sentence hearing that it did not address the issues the defence wanted to explore. Notwithstanding the history, the court considered the reports but was unpersuaded that the opinions expressed had any significant impact on culpability such as might lead to the conclusion that the sentence was manifestly excessive. The experts identified that the appellant has a low IQ, autistic traits and PTSD traits. The issue of PTSD was an issue the defence relied upon at trial in support of self-defence which the jury must have rejected. In any event, the court did not assess the evidence as amounting to a mental disorder or learning disability linked to the commission of the offence. The findings could be thought to have some potential relevance to an unsuccessful defence run at trial. The court did not consider they established a lower culpability factor. Even if they did, the court then had to balance the higher culpability feature arising from the use of two weapons against a lower culpability factor that could arise from the appellant’s pre-existing mental state, and one does not cancel out the other.
The court was not constrained by the sentencing judge’s approach. The court concluded that the Recorder was wrong to identify the guideline features of greater harm as being present but only by a fine margin. From the appellant’s perspective the case came perilously close to one that should be assessed as coming within greater harm in the context of section 18. As to culpability, the higher culpability factor arising from use of a weapon was present. The appellant used not just one weapon but two and delivered very forceful blows to the victim’s head. It was mere good fortune that the injuries were not even more severe. The court did not accept that the medical evidence clearly established a lower culpability factor but even if it did, the weight of the evidence was limited and the factor indicating higher culpability was very much predominant. The court considered that the Recorder should have placed the offence in Category 2 and not Category 1. That said, the nature and duration of the attack coupled with the harm caused operated to move the appropriate sentence to the top of the Category 2 range, namely nine years. The mitigation represented by the appellant’s good character coupled with the matters set out in the two reports did justify some downward movement. However, the court did not consider that the Recorder’s logic in reducing the sentence by a year because the appellant’s mother reported him to the police was in any way justifiable. That feature reflected no credit on the appellant and was irrelevant to the sentence. The court had the benefit of the two reports which the Recorder did not and making some allowance for their contents may legitimately have some impact by way of downward movement. That analysis led to the same result as that reached by the Recorder, albeit by a different route.
In short, the appeal was dismissed as a sentence of seven years’ imprisonment after trial for an attack of this nature, even in the context of the character traits described by the post-sentence experts, was not manifestly excessive.
Mr Poku was convicted after trial on 6 November 2017 of an offence contrary to section 18 of the Offences against the Person Act 1861 and was sentenced immediately to seven years’ imprisonment. He appealed with leave of the single judge.
The offence took place on 7 March 2016 when the appellant went to buy cigarettes from a local convenience store. He took exception to the shop assistant’s request for valid identification before serving him, claiming he had previously been served without such a demand. He armed himself with a wine bottle from the shelf and struck the victim over the head, causing the bottle to smash and the victim to sustain cuts. A struggle ensued during which the appellant took hold of a second bottle with which he struck the shop assistant further blows, causing additional lacerations. Eventually the shop assistant was able to wrestle the appellant out through the door. The victim sustained six significant lacerations to his head ranging from three centimetres to fifteen centimetres in length. A head scan revealed a left frontal laceration with adjacent locules of air but no acute inter-cranial haemorrhage or fractures. The wounds were cleaned and sutured and he was discharged in the early hours of the following morning. In a victim personal statement the shop assistant described losing a great deal of blood, receiving thirty-five stitches, injuring his ankle and breaking a tooth. He referred to being unable to move his left eye properly, his children being upset by his appearance, being unable to return to work, and people finding the scars on his face alarming. Photographs depicted graphically the amount of blood shed.
Shortly after police commenced their investigation the appellant’s mother contacted the emergency services to report that her son had come home covered in blood and told her he had lost his temper and hurt a shopkeeper. Upon arrest the appellant told officers he had been in a fight with the victim, smashed two bottles over his head and punched him, stating he hit him with a bottle multiple times and told him not to come for him but he kept coming. In formal interview the appellant declined to answer questions. At trial he claimed self-defence. The defence statement referred to incidents in his past when his brother had been shot and stabbed, causing the appellant trauma and long-term mental anguish. It also referred to the appellant having been a victim of crime when a car was deliberately driven into him causing injuries to his leg and body. The defence asserted that the appellant was stressed by these issues and that his condition had been aggravated by his mother’s illness.
The appellant was twenty-two years of age at the date of sentence and of previous good character. There was no pre-sentence report and the Recorder refused a defence application for an adjournment to investigate whether the appellant was subject to autism. The court was aware that the defence had obtained a psychiatric report addressing fitness to plead but was told that it had not investigated whether the appellant was on the autism spectrum. The Recorder queried the potential relevance of an assessment by a psychologist and proceeded to sentence without reports.
The Recorder assessed the offence as falling within Category 1 of the section 18 assault guideline on the basis that this was a sustained attack causing a large number of wounds to the victim’s head and that the victim was lucky to have come out of it as well as he did. The Recorder commented that the appellant had used a series of weapons and thus there was both greater harm and higher culpability. The starting point was identified as twelve years with a category range of nine to sixteen years. The Recorder positioned the offence at the bottom of the category range, commenting that he perceived there was a risk that such a conclusion might be criticised as too lenient. He then discounted the sentence by a further year for the appellant’s good character and because of the possibility of a peripheral or very marginal degree of autism, repeating his conclusion that he did not need a report on the issue. The Recorder stated he was going to discount the sentence further because the appellant’s mother had reported what he had done to the police, reducing it by another year. This resulted in a final sentence of seven years, two years below the category range into which the offending fell.
The grounds of appeal originally argued that the Recorder erred in determining this was a Category 1 rather than a Category 2 case. At the hearing Miss Bald, appearing for the appellant, submitted the case fell into Category 3. Reliance was placed on the judgment in R v Smith [2015] EWCA Crim 1482. It was submitted that the greater harm criterion was not made out because the injuries sustained were not serious in the context of a section 18 offence and two distinct blows in the course of what took place did not amount to a sustained and repeated assault. Additionally, counsel sought permission to argue an additional ground based on two reports obtained post-sentence addressing potential diagnoses of autism, PTSD and learning disability. It was submitted that the absence of this material led to incorrect categorisation of the offence and thus a manifestly excessive sentence. Although higher culpability by reason of use of a weapon was accepted, the defence argued that the medical evidence supported a lower culpability factor based on the existence of a mental disorder or learning disability linked to the commission of the offence.
The court watched the CCTV footage of the attack. Whilst the two blows to the head appeared to have been struck towards the beginning of an extended struggle, the two men spent some time violently wrestling together as the shop assistant attempted to remove the appellant from the premises. The court considered the injuries were relatively severe and that given the force with which the appellant struck the complainant, causing each bottle to smash on impact, it was remarkable that the consequences were not worse. The court considered the case of Smith, in which it was held that two blows, one of which was not said to amount to a section 18 offence, would not normally amount to a sustained or repeated assault, with the court acknowledging that each case entails a very fact-specific assessment. The court was persuaded that whilst coming very close to the sort of sustained incident which could put the offence into Category 1, the nature of the attack did not on its own quite qualify for a finding of greater harm by reference to that factor. The court was assisted by the case of Sowter [2018] EWCA Crim 1332 on the question of whether the injuries might merit a finding of greater harm. In Sowter the court quoted Smith to the effect that harm and violence must be significantly above the serious level of harm normal for section 18 to justify Category 1 and emphasised that the focus is on harm caused and also harm intended. The court in the present case considered that the level of harm sustained combined with the number of blows in the context of what was undoubtedly a lengthy struggle, which was indicative of intention to cause serious harm, could arguably justify a finding of greater harm. However, the court was persuaded that in the context of the stark difference between starting points the offence should be assessed as coming within lesser harm, albeit only by the finest of margins. The combination of two factors, each of which very nearly merited a finding of greater harm, remained relevant when assessing where the case should be positioned in the relevant category range.
As to the two post-sentence medical reports, the court considered whether it should receive them at all, referring to Rosen [2018] EWCA Crim 2164, which confirmed the court’s function is to review sentences passed below and not to conduct a sentencing hearing and that where fresh evidence is relied upon the provisions of section 23 of the Criminal Appeal Act 1968 apply. The court noted that at the time of trial the defence possessed at least the psychologist’s report but it had never been served, although it was suggested at the sentence hearing that it did not address the issues the defence wanted to explore. Notwithstanding the history, the court considered the reports but was unpersuaded that the opinions expressed had any significant impact on culpability such as might lead to the conclusion that the sentence was manifestly excessive. The experts identified that the appellant has a low IQ, autistic traits and PTSD traits. The issue of PTSD was an issue the defence relied upon at trial in support of self-defence which the jury must have rejected. In any event, the court did not assess the evidence as amounting to a mental disorder or learning disability linked to the commission of the offence. The findings could be thought to have some potential relevance to an unsuccessful defence run at trial. The court did not consider they established a lower culpability factor. Even if they did, the court then had to balance the higher culpability feature arising from the use of two weapons against a lower culpability factor that could arise from the appellant’s pre-existing mental state, and one does not cancel out the other.
The court was not constrained by the sentencing judge’s approach. The court concluded that the Recorder was wrong to identify the guideline features of greater harm as being present but only by a fine margin. From the appellant’s perspective the case came perilously close to one that should be assessed as coming within greater harm in the context of section 18. As to culpability, the higher culpability factor arising from use of a weapon was present. The appellant used not just one weapon but two and delivered very forceful blows to the victim’s head. It was mere good fortune that the injuries were not even more severe. The court did not accept that the medical evidence clearly established a lower culpability factor but even if it did, the weight of the evidence was limited and the factor indicating higher culpability was very much predominant. The court considered that the Recorder should have placed the offence in Category 2 and not Category 1. That said, the nature and duration of the attack coupled with the harm caused operated to move the appropriate sentence to the top of the Category 2 range, namely nine years. The mitigation represented by the appellant’s good character coupled with the matters set out in the two reports did justify some downward movement. However, the court did not consider that the Recorder’s logic in reducing the sentence by a year because the appellant’s mother reported him to the police was in any way justifiable. That feature reflected no credit on the appellant and was irrelevant to the sentence. The court had the benefit of the two reports which the Recorder did not and making some allowance for their contents may legitimately have some impact by way of downward movement. That analysis led to the same result as that reached by the Recorder, albeit by a different route.
In short, the appeal was dismissed as a sentence of seven years’ imprisonment after trial for an attack of this nature, even in the context of the character traits described by the post-sentence experts, was not manifestly excessive.
The appellant was convicted of inflicting grievous bodily harm with intent and sentenced to 7 years’ imprisonment.
The victim was a shop assistant who declined to sell him cigarettes without identification, the appellant armed himself with a wine bottle from the shelf and struck the victim over the head, a struggle ensued, and he grabbed a second bottle and hit him again. The victim was left with 6 significant lacerations to the head requiring 35 stitches and a scan revealed a left frontal laceration with adjacent locules of air. The appellant made an admission on arrest but declined to answer questions in interview.
The Recorder placed the offending in category 1 and discounted the sentence on the basis of his previous good character and the “possibility of a peripheral degree or very marginal degree of autism” (but declined to adjourn for a report in the issue). He further discounted the sentence as the appellant’s mother had reported what he had done to the police.
The grounds of appeal argued that the Recorder erred in his determination this was a category 1 case rather than a category 2 or even 3.
Held: the Court were persuaded that whilst coming very close to the sort of sustained incident which would place the offence in category 1 it did not quite qualify for a finding of greater harm. The level of harm and the number of blows with two bottles was indicative of the appellant intending to cause a serious level of harm. The Court was persuaded that in the context of the stark difference between starting points that the offence should be assessed as coming within lesser harm, a conclusion reached by the “finest of margins”. The offence should be placed in category 2 but the nature of the attack, coupled with the harm caused, moved the sentence to the top of the range. With a discount for good character and personal mitigation a downward adjustment resulted in the same sentence of 7 years. The discount for the mother informing the police was not justifiable, it reflected no credit on the appellant and was irrelevant to sentence. The appeal was dismissed.