Josiah La Pompe [2019] EWCA Crim 1312

In R v Josiah La Pompe [2019] EWCA Crim 1312 the Court of Appeal (Lord Justice Singh, Mr Justice Nicol and Sir John Royce) allowed an appeal against sentence, reducing a term of imprisonment from 37 months to 32 months.

Mr La Pompe had pleaded guilty on 22nd January 2019 at Leeds Crown Court to one count of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. On 12th February 2019 His Honour Judge Bayliss sentenced him to 37 months’ imprisonment. The conviction put Mr La Pompe in breach of a twelve-month conditional discharge, but the judge imposed no separate penalty for that breach. Mr La Pompe appealed with the leave of the single judge.

The offence occurred on 3rd September 2018 at about 5.30pm at Leeds Railway Station. PC Coates, a uniformed officer with the British Transport Police, heard Mr La Pompe shouting at ticket counter staff. By the time PC Coates investigated, Mr La Pompe had walked away. PC Coates followed and found that Mr La Pompe wanted to travel to Peterborough but had no money or ticket. When told he could not travel without payment and must leave the station, Mr La Pompe took umbrage and walked towards the platforms rather than the exit. PC Coates placed his arm on Mr La Pompe’s shoulder, whereupon Mr La Pompe told him not to touch him. PC Coates then took hold of Mr La Pompe’s arm to escort him from the station. Mr La Pompe swung his arm towards the officer’s forehead, knocking off his helmet, then struck him on the left side of the jaw. Both fell to the ground with Mr La Pompe on top. PC Coates activated his emergency radio button and was assisted by other officers and members of the public. After arrest, PC Coates realised he had sustained an injury to his right ankle. It transpired that the ankle was fractured in three places. PC Coates did not know how the injury occurred, only that he had been taken to the floor during the struggle. His foot was placed in a cast and later required surgery.

In a Victim Impact Statement, PC Coates described the pain caused by the injury. His foot had been in plaster for a week before an operation, after which it was plastered again. He was dependent on his family for mundane tasks, which he found burdensome. He worried about long-term effects, had to cancel a planned holiday, and was unable to run or garden. Mr La Pompe was born on 2nd September 1983 and was 35 at the time of the incident. He had fifteen previous court appearances for 30 offences between 1998 and 2018. Relevant convictions included assaulting a police constable and two assaults in 1998, a section 20 offence in 2003 attracting fifteen months’ detention, robbery in 2004 attracting four years’ imprisonment, and arson in 2009 attracting sixteen months’ imprisonment.

The pre-sentence report stated that Mr La Pompe denied behaving aggressively towards station staff and claimed PC Coates had lied and did not have a broken ankle. Mr La Pompe had been homeless since 2015. He had been expelled from school for violent behaviour. A 2009 psychological assessment concluded he had a poor sense of self and was highly sensitive to negative emotions. He had witnessed domestic violence and his lack of internal resilience under moderate stress left him vulnerable to severe anxiety and depression. There was no current involvement from mental health services. He was assessed as posing a medium risk of reoffending statistically, raised to high on further analysis, and also a risk of harm to the public. The probation officer recommended custody.

In passing sentence, the judge noted that PC Coates was doing no more than his duty protecting the public when he approached Mr La Pompe to ask about the problem. The officer’s attempt to escort an angry man from a busy station concourse during rush hour was a normal expectation. Mr La Pompe reacted by turning, punching the officer and struggling violently with him. The court had seen CCTV footage showing the station was very busy with commuters and young children present. Mr La Pompe caused serious damage to PC Coates’ right ankle before being restrained with the help of others. The judge gave Mr La Pompe ten per cent credit for his guilty plea, noting the plea was not accompanied by the slightest remorse. Mr La Pompe denied culpability, blamed the victim, denied his previous offences, told the probation officer that the victim was lying about the broken ankle, blamed him for his predicament, and said that God would take revenge upon PC Coates. The judge accepted Mr La Pompe had personal issues but said that did not excuse what he had done. The probation officer had assessed him as posing a high risk of serious physical harm to the general public.

The judge considered the offence so serious that it fell within category 2 of the guideline for section 20 offences as a case of greater harm. Although the Assaults on Emergency Workers (Offences) Act 2018 had not yet come into force, the fact that the officer had been performing a public duty could still be taken into account under the existing guidelines. The starting point for greater harm but not higher culpability was eighteen months’ custody with a range up to three years. The guidelines made plain that in some cases, having considered all factors, it might be appropriate to move outside the identified range. The judge referred to the previous convictions, including those for violent offences, noting that the last involving a threat of violence had been in 2011. Other aggravating features were the location, timing and presence of others including children visible on the CCTV footage. The court did not take the ongoing effect upon the victim as an aggravating factor because that was covered by the assessment of seriousness of injury which placed the offence within category 2. However, assault on a person carrying out a public service was a further aggravating factor. The judge considered that overall the aggravating factors obliged him to move outside the category range. The starting point after trial would have been three and a half years’ custody. That was reduced by five months to reflect the late guilty plea, a little more than ten per cent. The overall sentence was therefore 37 months’ imprisonment.

On behalf of Mr La Pompe, Mr Sargeant, a solicitor advocate, agreed this was a category 2 case because of the greater harm to PC Coates. The judge agreed there was not higher culpability. Mr Sargeant accepted there were seriously aggravating factors including the location, timing, presence of children, lack of remorse, the fact PC Coates was performing a public duty, and the appellant’s record. On the other hand, Mr Sargeant argued the offence had been spontaneous with no planning or premeditation, and Mr La Pompe had his own difficulties, being homeless at the time with behaviour issues. Mr Sargeant submitted that overall the offence did not allow the judge to take a sentence, assuming a trial, six months above the top of the category range.

The court held there was force in Mr Sargeant’s submissions. This was a bad offence of the kind described in category 2 of the guideline. For all the reasons given by the judge there was good reason to move above the starting point to the top of the category range. But that range went up to three years after trial. The combination of circumstances did not justify going beyond the top of the range. As Mr Sargeant pointed out, the sentence of three and a half years, which the judge had in mind assuming a trial, would have been the starting point for a category 1 offence. The late guilty plea entitled Mr La Pompe to no more than ten per cent credit. In short, the court quashed the sentence of 37 months’ imprisonment and substituted a sentence of 32 months’ imprisonment, allowing the appeal to that extent.