John Sykes [2019] EWCA Crim 1122
Summary
Regina v John Sykes [2019] EWCA Crim 1122 concerned an appeal against a sentence of immediate custody imposed by the Crown Court at Bradford for being in charge of a dog which caused injury while dangerously out of control.
Mr Sykes pleaded guilty on what was to have been the first day of his trial on 20 February 2019 and was sentenced on 12 March 2019 by His Honour Judge Rose to sixteen months’ imprisonment. The judge also made an order for destruction of the dog and disqualified the appellant from owning a dog for ten years. Leave to appeal was granted.
On the evening of 5 April 2018 Robert Moore was jogging along Bowling Alley Terrace in Brighouse when he came upon the appellant and his partner walking ahead with a Staffordshire bull terrier on a lead. As Mr Moore overtook them the dog growled and bit him twice, once to his left leg near the knee and once to the right calf. Both bites broke the skin and bled. The appellant’s partner told him to take the dog home whilst she remained to help Mr Moore and gave him her details. Mr Moore attended the Accident and Emergency Unit at Huddersfield where he was found to have two puncture wounds to his left leg and three to his right calf. The worst wound was an inch long and so deep that tissue protruded from it. The wounds were deliberately kept open and repeatedly redressed because of infection risk and did not close for seven weeks. Mr Moore was off work for a week, unable to walk properly for three weeks and unable to play football for two months. He sustained permanent scarring to both legs and continued to experience swelling and discomfort after prolonged exercise which interfered with his activities as a keen sportsman.
The appellant was of previous good character and in poor health. He suffered from portal vein thrombosis, bowel polyps, a hiatus hernia and migraines, for which he was receiving medication. He was assessed as unsuitable for unpaid work. The author of the pre-sentence report recommended a six-month community order with requirements. In interview for that report the appellant claimed to be unaware of the requirement for the dog to be muzzled in public and appeared to cast some blame on Mr Moore for having spooked the dog. However, in his interview for the offence itself the appellant had confirmed that he was fully aware of the community resolution order in place following two previous biting incidents involving two women. He said he knew he was supposed to have the dog muzzled in public but hated putting the muzzle on and was sorry. He had in fact had the muzzle with him on the day of the offence. When pressed he said he had interpreted the order as requiring a muzzle only when the dog was off the lead in public.
The judge placed the offence in category A2 of the relevant definitive guideline, namely high culpability and medium harm. High culpability was established by the failure to respond to two previous biting incidents and the failure to comply with the official warnings in the community resolution order requiring the dog to be muzzled and on a short lead in public. The judge rejected the submission that the appellant was unaware of the requirement for the dog to be muzzled even when on a short lead. The judge also rejected the submission that the injuries were insufficiently serious to warrant stitching, noting that the only reason stitching was not administered was the risk of infection. He nevertheless concluded that the injuries, whilst serious, did not fall into the highest category of harm. The repeated nature of the attack was treated as an aggravating feature. The judge took account of the appellant’s lack of previous convictions, his age and his ill-health in mitigation. He started at two years’ custody, reduced that to eighteen months to reflect personal mitigation and then gave a further two months’ credit for the guilty plea, resulting in the final sentence of sixteen months. The judge said he was forced to conclude that immediate custody was required where a person with the appellant’s knowledge of what the dog was capable of failed to control it in defiance of a community resolution order to have the dog muzzled.
On appeal Mr Khan argued that the sentence was manifestly excessive given the appellant’s good character, age, ill-health and the recommendations in the pre-sentence report. He submitted that the sentence could and should have been suspended. He contended that the appellant was not aware of the need to have the dog muzzled when on a short lead in public and told the court that the appellant was not coping well in custody and was not receiving the medication and health monitoring he required.
Mrs Justice Simler, giving the judgment of the court, held that the appeal could not succeed. The court found it difficult to accept that the appellant had the understanding of the community resolution order advanced by Mr Khan. The appellant lived with his partner, who owned the dog, and they must have discussed the previous biting incidents and the community resolution order. The appellant had indeed had the muzzle with him on the day. The judge had made a finding of fact that the appellant was not unaware of the requirement to have the dog muzzled even when on a short lead in public, and nothing in the grounds of appeal challenged that finding. The court considered this a serious offence that had resulted in permanent physical injury and lasting unease for Mr Moore. The wounds were deep enough to require stitching and affected him physically for months. It was a matter of chance that the victim was a robust adult man bitten on the leg rather than a young child whose face might have been bitten. This was a dangerously out-of-control dog and culpability was high. This was the third occasion on which the dog had attacked another person, the most recent previous occasion being only weeks earlier in March 2018 when a sixteen-year-old girl was bitten as she entered the appellant’s home. The judge was plainly entitled to conclude that the appellant was well aware of the earlier incidents and to place reliance on his disregard for the community resolution order. Those factors entitled the judge to conclude that appropriate punishment could not be achieved without immediate custody. A reduction of six months to reflect personal mitigation was ample to reflect the matters to which Mr Khan had referred. The court expressed concern that the appellant was not receiving the necessary medication and health monitoring and considered that most unfortunate, expressing the hope that these difficulties would be resolved promptly by the prison authorities. However, those matters could not justify any argument that the length of sentence was other than proper having regard to harm, culpability and the available mitigation.
In short, the sentence of sixteen months’ imprisonment was neither wrong in principle nor manifestly excessive and the appeal was dismissed.
Mr Sykes pleaded guilty on what was to have been the first day of his trial on 20 February 2019 and was sentenced on 12 March 2019 by His Honour Judge Rose to sixteen months’ imprisonment. The judge also made an order for destruction of the dog and disqualified the appellant from owning a dog for ten years. Leave to appeal was granted.
On the evening of 5 April 2018 Robert Moore was jogging along Bowling Alley Terrace in Brighouse when he came upon the appellant and his partner walking ahead with a Staffordshire bull terrier on a lead. As Mr Moore overtook them the dog growled and bit him twice, once to his left leg near the knee and once to the right calf. Both bites broke the skin and bled. The appellant’s partner told him to take the dog home whilst she remained to help Mr Moore and gave him her details. Mr Moore attended the Accident and Emergency Unit at Huddersfield where he was found to have two puncture wounds to his left leg and three to his right calf. The worst wound was an inch long and so deep that tissue protruded from it. The wounds were deliberately kept open and repeatedly redressed because of infection risk and did not close for seven weeks. Mr Moore was off work for a week, unable to walk properly for three weeks and unable to play football for two months. He sustained permanent scarring to both legs and continued to experience swelling and discomfort after prolonged exercise which interfered with his activities as a keen sportsman.
The appellant was of previous good character and in poor health. He suffered from portal vein thrombosis, bowel polyps, a hiatus hernia and migraines, for which he was receiving medication. He was assessed as unsuitable for unpaid work. The author of the pre-sentence report recommended a six-month community order with requirements. In interview for that report the appellant claimed to be unaware of the requirement for the dog to be muzzled in public and appeared to cast some blame on Mr Moore for having spooked the dog. However, in his interview for the offence itself the appellant had confirmed that he was fully aware of the community resolution order in place following two previous biting incidents involving two women. He said he knew he was supposed to have the dog muzzled in public but hated putting the muzzle on and was sorry. He had in fact had the muzzle with him on the day of the offence. When pressed he said he had interpreted the order as requiring a muzzle only when the dog was off the lead in public.
The judge placed the offence in category A2 of the relevant definitive guideline, namely high culpability and medium harm. High culpability was established by the failure to respond to two previous biting incidents and the failure to comply with the official warnings in the community resolution order requiring the dog to be muzzled and on a short lead in public. The judge rejected the submission that the appellant was unaware of the requirement for the dog to be muzzled even when on a short lead. The judge also rejected the submission that the injuries were insufficiently serious to warrant stitching, noting that the only reason stitching was not administered was the risk of infection. He nevertheless concluded that the injuries, whilst serious, did not fall into the highest category of harm. The repeated nature of the attack was treated as an aggravating feature. The judge took account of the appellant’s lack of previous convictions, his age and his ill-health in mitigation. He started at two years’ custody, reduced that to eighteen months to reflect personal mitigation and then gave a further two months’ credit for the guilty plea, resulting in the final sentence of sixteen months. The judge said he was forced to conclude that immediate custody was required where a person with the appellant’s knowledge of what the dog was capable of failed to control it in defiance of a community resolution order to have the dog muzzled.
On appeal Mr Khan argued that the sentence was manifestly excessive given the appellant’s good character, age, ill-health and the recommendations in the pre-sentence report. He submitted that the sentence could and should have been suspended. He contended that the appellant was not aware of the need to have the dog muzzled when on a short lead in public and told the court that the appellant was not coping well in custody and was not receiving the medication and health monitoring he required.
Mrs Justice Simler, giving the judgment of the court, held that the appeal could not succeed. The court found it difficult to accept that the appellant had the understanding of the community resolution order advanced by Mr Khan. The appellant lived with his partner, who owned the dog, and they must have discussed the previous biting incidents and the community resolution order. The appellant had indeed had the muzzle with him on the day. The judge had made a finding of fact that the appellant was not unaware of the requirement to have the dog muzzled even when on a short lead in public, and nothing in the grounds of appeal challenged that finding. The court considered this a serious offence that had resulted in permanent physical injury and lasting unease for Mr Moore. The wounds were deep enough to require stitching and affected him physically for months. It was a matter of chance that the victim was a robust adult man bitten on the leg rather than a young child whose face might have been bitten. This was a dangerously out-of-control dog and culpability was high. This was the third occasion on which the dog had attacked another person, the most recent previous occasion being only weeks earlier in March 2018 when a sixteen-year-old girl was bitten as she entered the appellant’s home. The judge was plainly entitled to conclude that the appellant was well aware of the earlier incidents and to place reliance on his disregard for the community resolution order. Those factors entitled the judge to conclude that appropriate punishment could not be achieved without immediate custody. A reduction of six months to reflect personal mitigation was ample to reflect the matters to which Mr Khan had referred. The court expressed concern that the appellant was not receiving the necessary medication and health monitoring and considered that most unfortunate, expressing the hope that these difficulties would be resolved promptly by the prison authorities. However, those matters could not justify any argument that the length of sentence was other than proper having regard to harm, culpability and the available mitigation.
In short, the sentence of sixteen months’ imprisonment was neither wrong in principle nor manifestly excessive and the appeal was dismissed.
The appellant pleaded guilty on the first day of trial to being in charge of a dog which caused injury while dangerously out of control, he was sentenced to 16 months’ imprisonment. The dog bit a jogger who went to overtake the appellant and his partner. The appellant was of previous good character and due to poor health was assessed as unsuitable for unpaid work, the PSR made a recommendation for a 6 month community order and of a low risk of re-offending. The dog was required to wear a muzzle in public due to biting two women previously. It seemed as though the appellant had interpreted the order as requiring a muzzle only when the dog was not on a lead in a public place.
Held: it is difficult to accept the appellant had that understanding of the order, he had the muzzle with him on the day in question and must have been aware of the requirement to have the dog muzzled, even on a short lead. This was a serious offence resulting in physical injury and lasting unease for the victim, culpability was high, and this was the third occasion the dog had attacked a person. The factors justified an immediate custodial sentence, the appeal was dismissed.