Jessica Ashurst [2019] EWCA Crim 1784

**Jessica Ashurst** [2019] EWCA Crim 1784 concerned an appeal by Jessica Ashurst against sentence imposed at Bournemouth Crown Court following her conviction for two offences of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861. The Court of Appeal, comprising Lord Justice Holroyde, Mr Justice Julian Knowles and Mrs Justice Cutts DBE, allowed the appeal and reduced the total sentence from three years and three months’ imprisonment to 30 months’ imprisonment.

On 14 January 2019 Ms Ashurst was convicted after trial of two offences of assault occasioning actual bodily harm. On 27 March 2019 she was sentenced to a total of three years and three months’ imprisonment, comprising ten months’ imprisonment on count 1 and three years and three months on count 2, to run concurrently. Her co‑defendant Driver, who was involved only in count 1, was sentenced to ten months’ imprisonment after conviction. The male co‑defendant Moran, Ms Ashurst’s ex‑partner, pleaded guilty to the assault forming count 2 and to assault by beating and was sentenced to three years’ imprisonment in total.

On 10 November 2017 Ms Ashurst’s three‑year‑old son was staying with his father at the home of his paternal grandmother, Ms Rees, in accordance with arrangements agreed in court proceedings. Shortly before 11.00 pm Ms Ashurst, who was intoxicated, arrived at the address with her two co‑defendants intending to take the child. When Ms Rees opened the front door the co‑defendants barged in forcefully. Ms Ashurst pushed Ms Rees against a hallway wall and restrained her there with Driver’s help, pushing her shoulder and chest whilst Driver held her right arm; both pulled her hair. Ms Ashurst shouted to Moran to “fucking get him”. Moran pushed past Ms Rees’ 13‑year‑old daughter, who was on the stairs, and took the child from his bed. Ms Rees was unable to free herself because she was restrained by her hair; when she tried to use her mobile phone to call the police it was knocked from her hand. Ms Ashurst shouted to Moran to hurry up. As he came down the stairs carrying the child, Ms Rees was pushed over and Moran pushed the 13‑year‑old. Driver then took the child from Moran and left. Ms Rees suffered bruising. This conduct formed count 1.

A short time later Ms Rees found herself lying on her left side on the driveway outside her front door with Ms Ashurst’s foot on her face, around her jaw and on her right cheek. Moran then kicked her to the head repeatedly. The 13‑year‑old tried to assist her mother, who was pinned to the floor, and was pushed many times by Moran causing her to fall. When Ms Ashurst removed her foot from Ms Rees’ neck, Ms Rees attempted to get up using Moran’s leg for support. Ms Ashurst then kicked her to the back of the neck, stamping on the right side of her face. The two of them continued to kick her. At one point Moran placed his foot on Ms Rees’ head, bearing down with pressure, and she may briefly have lost consciousness. Moran and Ms Ashurst then fled. Ms Rees suffered multiple bruising to her body and face, a swollen painful nose and tenderness over the jaw and back of the neck. A pronounced shoe mark on her back was attributed to Moran. This conduct formed count 2.

A week later Ms Rees returned to hospital suffering ongoing headaches, double vision, dizziness and vomiting, although a CT scan showed nothing abnormal. Later in 2018 a consultant in rehabilitation and brain injury described a minor head injury with a prolonged and incomplete recovery. Symptoms included intolerance of noise, bright lights and busy situations, frequent cognitive failings in which she failed to understand what people were saying, frequent episodes of feeling that she was falling, serious headaches requiring painkillers and tinnitus which was considered likely to endure. In several victim impact statements Ms Rees spoke of difficulty with mobility including getting in and out of bed, difficulty sleeping and eating in the immediate aftermath, and emotional impact including feeling powerless and unsafe in her own home. She was deeply upset that her daughter had witnessed the events. The 13‑year‑old spoke in her impact statement of the impact on her school and social life; she felt very scared and could not sleep for some time afterwards.

Ms Ashurst was aged 31 at sentence and was treated by the judge as of good character, though he noted some minor previous skirmishes with the police many years earlier. A pre‑sentence report noted that notwithstanding her having contested the trial, Ms Ashurst accepted she had assaulted Ms Rees but did not accept she had intentionally hurt her. The author assessed her as presenting a risk of some harm to those linked to her intimate relationships with men. The report recognised the likelihood of a custodial sentence but confirmed suitability for a community‑based sentence and saw potential value in rehabilitative intervention promoting consequential thinking and improved personal assertiveness. In mitigation Ms Ashurst relied on her good character, her full‑time employment as a manager, and most importantly that she was the mother and primary carer of three children who relied on her for all their emotional and financial needs. She expressed remorse and asked for forgiveness in a letter to the victim.

The prosecution submitted that the case fell within category 1 of the Sentencing Council Assault Guideline for assault occasioning actual bodily harm, with a starting point of 18 months’ imprisonment and a range of one to three years. The judge indicated that in his view this was in reality not an offence of assault occasioning actual bodily harm but, by reason of the head injury to the victim, an offence of causing grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. He stated that with the aggravating features it fell to be sentenced “way beyond the starting point” for an offence of assault occasioning actual bodily harm. In his sentencing remarks the judge concluded that Ms Ashurst had decided to take the law into her own hands, which of itself justified an immediate custodial sentence. He observed that this was an unprovoked attack on a defenceless older woman who was doing no more than trying to protect the child Ms Ashurst was seeking to take. He found that exposing the 13‑year‑old daughter to the attack was highly aggravating, as was the alcohol. Without reference to where he placed the offences within the sentencing guidelines or to any factors he considered in mitigation, the judge imposed the sentences already described.

On appeal, Mr Mason advanced four grounds. Firstly, and primarily, the judge adopted too high a starting point by concluding that the offence was more akin to causing grievous bodily harm rather than the offence of occasioning actual bodily harm of which Ms Ashurst was charged and convicted; this, Mr Mason contended, the judge was not entitled to do, especially if there was no medical evidence to support any brain injury. Secondly, the judge erred in too readily accepting the victim’s account of the impact upon her life whilst ignoring the possibility that she had exaggerated this and the nature of the assault. Thirdly, the judge erred in exaggerating Ms Ashurst’s role in the assault and the injuries sustained by the victim therefrom. Finally, the judge paid no regard to Ms Ashurst’s personal mitigation, in particular that she was the main carer of three children who would suffer by her incarceration. The court was informed that the children were currently residing with the father of two of them on what was understood to be a temporary basis in stable accommodation and that the Family Court had ordered their return to Ms Ashurst upon her release.

Mrs Justice Cutts, giving the judgment of the court, agreed with the judge that this was a serious case. It was an unprovoked, vicious and sustained group attack on a defenceless older woman, late at night in her own home. The attack was orchestrated by Ms Ashurst who was taking the law into her own hands. The violence inflicted was over and above that which was necessary to restrain the victim in order to facilitate the taking of the child. After the child was removed the victim, whilst lying on the ground, was repeatedly kicked. It was no matter that this was largely by Moran; Ms Ashurst was present and engaged in the assault as part of a joint enterprise and was responsible for the totality of the injuries caused. The judge was entitled to find that Ms Ashurst seemed to be enjoying the attack at this point; there could have been no other reason for the continuing assault. Ms Ashurst was in drink and the entire incident had been witnessed by the victim’s 13‑year‑old daughter who was significantly affected. Notwithstanding the mitigation, a substantial immediate custodial sentence was inevitable.

The court held that having presided over the trial and seen the victim give evidence, the judge was well placed to assess her credibility and whether she was prone to exaggeration. He was entitled to accept that she was truthful in her description of the assault and of the significant and ongoing impact upon her and the court saw no valid criticism in this regard.

However, the court found force in Mr Mason’s submissions that in coming to the appropriate custodial term the judge seemed to have sentenced Ms Ashurst on the basis that she had in reality committed an offence of inflicting grievous bodily harm. In so doing he fell into error and came to a higher starting point than was justified. Ms Ashurst had been charged with and convicted of assault occasioning actual bodily harm; it was the guideline pertinent to that offence which should have been applied. As Mr Mason conceded, this was nonetheless a case of greater harm and higher culpability and therefore fell within category 1 of that guideline. The court considered that the circumstances of the offence, particularly in count 2, placed the appropriate starting point towards the top of the range for that category.

The court also held that the judge paid insufficient regard to the fact that Ms Ashurst was the mother and primary carer of young children. This was not addressed at all in his sentencing remarks. It was incumbent on the judge to take the interests of the children into account. Notwithstanding that they were currently living in stable accommodation, Ms Ashurst’s incarceration would have a significant impact on them. Whilst this could not in this serious case justify suspending the custodial term, it was a significant mitigating factor.

The court concluded that the sentences imposed were excessive and manifestly so. It considered the appropriate sentence for the totality of the offending to be 30 months’ imprisonment. The court quashed the sentence on count 2 and substituted a sentence of 30 months’ imprisonment to run concurrently with the sentence on count 1.

In short, the Court of Appeal reduced the sentence from three years and three months’ imprisonment to 30 months, holding that the sentencing judge erred in treating the offence as more akin to grievous bodily harm and failed to give sufficient weight to the impact of custody on the appellant’s young children.