Kris Murden [2019] EWCA Crim 1154

Regina v Kris Murden [2019] EWCA Crim 1154 concerned an appeal against an extended sentence imposed by the Crown Court at Wood Green for assault occasioning actual bodily harm. On 27 April 2017 Mr Murden pleaded guilty and on 12 May 2017 was sentenced to an extended sentence totalling five years, comprising a custodial term of three years and an extended licence period of two years. The Court of Appeal allowed the appeal in part and reduced the custodial element to two years whilst maintaining the extended licence period of two years, making a total extended sentence of four years.

The offence occurred on 23 March 2017 at approximately 4.15 in the afternoon on St Mary’s Road in North London. The complainant, a 58-year-old woman, was walking towards her car when she noticed Mr Murden nearby with his dog. She stopped and attempted to pet the dog. Mr Murden became extremely aggressive, shouting at her not to touch his dog, and an argument ensued. He then took the dog chain he had been holding and repeatedly struck the complainant in the face using considerable force. CCTV recordings and witness statements showed that there were approximately eight blows to the complainant’s face using the dog chain. A member of the public intervened and came to the complainant’s assistance. She moved away and sought security with others in a nearby park. Police arrived and arrested Mr Murden nearby. The dog lead was recovered. He was interviewed and made no comment.

Medical examination revealed that the complainant had sustained a number of lacerations above her right eye and a two-centimetre cut to the bridge of her nose. Whilst her physical injuries were not the most serious, her victim personal statement made clear that she had been greatly troubled by the incident and had been affected in the long term. Mr Murden had a number of previous convictions including offences of violence, carrying and using offensive weapons, and a firearm offence, which required the judge to consider an extended sentence.

The sentencing judge had regard to a pre-sentence report and a psychiatric report prepared on an earlier occasion. The pre-sentence report concluded that the offence clearly crossed the custody threshold and that only immediate custody could effectively manage the risk that Mr Murden presented of carrying out an attack or assault on a member of the public in the future. The psychiatric report showed that Mr Murden had a history of severe anxiety and depression and on occasions suffered from paranoid delusions. He demonstrated antisocial traits and had symptoms of post-traumatic stress disorder. However, he did not have a severe enduring mental illness nor did he suffer from an illness of a nature or degree as defined under the Mental Health Act 1983. There was no recommendation for any particular disposal of a medical or psychiatric nature, but it was observed that he had not until that point been receiving proper treatment by way of counselling or antidepressant and anti-panic medication for the conditions from which he undoubtedly suffered.

The learned judge described the assault as a shocking, unprovoked, brutal and sustained attack. The complainant had done nothing to bring about the assault but had merely attempted to pet Mr Murden’s dog. He had reacted in a way that was completely uncalled for and unwarranted. The judge made particular reference to the psychological effect upon the complainant and described how her life had been changed dramatically and that the actions of Mr Murden had had a very profound effect upon her. The judge observed that Mr Murden expressed no remorse, but the court noted to his credit that he had pleaded guilty at the first opportunity.

The learned judge had regard to the Definitive Guideline of the Sentencing Council in relation to assault. The parties had agreed that the offence fell into category one for a number of reasons, particularly the greater harm arising from the sustained nature of the assault and the higher culpability demonstrated by the use of the dog chain as a weapon. The starting point within that categorisation was 18 months within a range of one year to three years’ imprisonment. The judge expressed the view that the case fell at the top end of that range. However, in passing sentence, the learned judge took the view that the offence fell outside that range and took a starting point for sentence of four and a half years before giving credit for the plea of guilty. The judge considered Mr Murden’s record and took the view that he was somebody who presented a continuing risk and therefore an extended sentence was merited.

On appeal, Mr Eguae submitted that some confusion between the category range and the statutory range of sentencing must have entered into the sentencing process for the learned judge to reach the starting point of four and a half years in the way that he did. The single judge had granted Mr Murden leave to appeal, an extension of time of 619 days, and a representation order for counsel. No complaint was made about the ancillary orders relating to forfeiture and destruction of the chain or the victim surcharge order, nor about the imposition of an extended sentence itself.

Mrs Justice McGowan, giving the judgment of the court, held that there was merit in the submission made. The offence clearly fell into category one as it was a sustained attack committed using a weapon. The additional features which the learned judge considered, namely that it was committed in broad daylight and in public, had to be approached with a degree of caution as they might equally well have applied had the offence occurred at night and in an isolated location. Nonetheless, the use of the weapon and the nature of the assault itself rightly placed it in category one and at the top end of the range in category one, therefore taking the appropriate sentence for the assault before credit for a guilty plea to three years. Full credit was deserved. Taking three years at the top of the range as the starting point and giving full credit, the appropriate sentence for the offence without more was one of two years.

However, the court held that the learned judge was entirely right to impose an extended sentence given the nature of the offence in combination with the fact that at least one of Mr Murden’s previous convictions was a schedule 15B offence under the Criminal Justice Act 2003. Accordingly, the court imposed an extended period of two years in addition to the two years custodial element of the sentence, making a total term of four years comprising two years’ custody plus an extended period of two years on licence. In short, the appeal was allowed to the extent that the extended sentence was reduced from five years to four years by reducing the custodial element from three years to two years whilst maintaining the two-year extended licence period.