McGarrick [2019] EWCA Crim 530
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R v McGarrick [2019] EWCA Crim 530 concerned an appeal against a consecutive sentence of four months’ imprisonment imposed for assaulting an emergency worker, heard by the Court of Appeal (Lady Justice Hallett, Mr Justice Warby and Sir John Royce), which refused leave to appeal.
In January 2019 Mr McGarrick pleaded guilty in the Crown Court at Wolverhampton to one count of fraud by false representation contrary to section 1 of the Fraud Act 2006 and one count of assault by beating of an emergency worker contrary to section 1(1) of the Assaults on Emergency Workers (Offences) Act 2018. On 13 February 2019 His Honour Judge Nawaz sentenced him to nine months’ imprisonment for the fraud and four months consecutive for the assault, a total of thirteen months’ imprisonment.
The fraud involved a 97-year-old complainant, Mr Kenneth Wells, who lived independently and for whom the applicant had previously done satisfactory work. On 28 November 2018 Mr Wells had a minor guttering problem requiring a simple repair that could have been completed in minutes. The applicant spent two hours pretending to do much more significant work than had been requested and then sought £200 from Mr Wells. A disagreement ensued and the police were called. As PC Cavell and PC Brown approached the applicant as he walked away from the premises, they informed him he was to be arrested and PC Brown produced handcuffs. The applicant struggled, pushed and pulled away, resisting arrest. Incapacitant spray was used in an attempt to calm him. As PC Cavell tried to take hold of the applicant’s clothing, the applicant used his right hand and arm to strike the officer to the side of his face, dislodging his radio earpiece. The officer later suffered pain to his left cheek and to his upper and lower teeth and gums. During the continued struggle they fell to the ground and the officer sustained marks to his arms from the fall.
Mr McGarrick was aged 34 and had an extensive criminal record, having appeared before the courts on 33 previous occasions for 60 offences between 2001 and 2017. Thirty-two of these were for theft and kindred offences including dwelling burglary. On 7 June 2017 he had been sentenced to sixteen months’ imprisonment for one offence of dwelling burglary, concluding about six weeks before the present offending. He also had a significant record of offences against the person, including convictions in 2006 and 2012 for assault occasioning actual bodily harm, and in 2013 he received sixteen weeks’ imprisonment for theft, common assault and breach of a suspended sentence order. Other offences included having an article with a blade, disorderly behaviour, failing to surrender, multiple breaches of court orders and criminal damage. The Court of Appeal was satisfied that in all the circumstances it was unnecessary to obtain a pre-sentence report before sentencing.
The sentencing Judge said that he would look at both matters in the round, bearing in mind totality. He described the fraud as a mean, despicable offence on somebody the applicant knew and had worked for and whose frailties he knew about. Having considered the guidelines, the Judge placed this offending in Category 2 and arrived at a notional sentence after a trial of twelve months’ imprisonment, reduced by 25 per cent for a guilty plea which was not at the earliest reasonable opportunity. Turning to the assault, the Judge recognised that no serious injury was occasioned but noted what PC Cavell had pointed out in his statement, that he did not take this job to be treated in this way. The Judge pointed out that the victim had been in uniform and that it was apparent that he was only doing what he was duty-bound to do. The applicant, no stranger to arrest, knew exactly what was happening. Police officers and other workers in uniform did not deserve to be treated in this way. The Judge observed that there was little mitigation other than the guilty plea, for which full credit was given. He noted that the maximum sentence for such an offence had been six months’ imprisonment but was now twelve months. He concluded that the appropriate sentence after a trial would have been six months’ imprisonment and, allowing full credit for the plea, he arrived at the sentence of four months consecutive to the sentence for fraud.
The single ground of appeal was that the Judge’s notional sentence after a trial for the assault was much too high, leading to an overall sentence which was manifestly excessive. Mr Hamblett, appearing for the applicant, submitted that this was an offence involving the infliction of very low-level injury on a police officer which caused pain and nothing else, for which a six-month sentence after a trial would be excessive. He pointed out that as yet there were no sentencing guidelines for this offence but invited the court to have regard to the Definitive Guideline for Assault, arguing that the offence could properly be regarded as one of common assault involving higher culpability or as an offence of assaulting a police constable in the execution of his duty. In either case he submitted the offence would fall within Category 2, with a starting point of a medium level community order and the range would not go beyond a high-level community order. An uplift would be required, he accepted, but not to the level adopted by the sentencing Judge.
Mr Justice Warby, giving the judgment of the court, rejected these submissions for five main reasons. First, just as the sentencing Judge looked at the offending in the round, so should the Court of Appeal. The task of the court was to review the sentence as a whole. An applicant could not bank one aspect of a sentence and appeal against a discrete part of it without regard to the whole, citing R v Hyde [2016] EWCA Crim 1031 at paragraph 15. The prosecution fairly submitted that the notional sentence after a trial for fraud could have been higher but for considerations of totality.
Secondly, reliance on the Assault Guidelines for sentencing other offences was not apt. The Assaults on Emergency Workers (Offences) Act 2018 was enacted to improve protection for emergency workers. Under section 39 of the Criminal Justice Act 1988 the offences of common assault or battery were summary only offences with a maximum sentence of six months’ imprisonment. Section 1 of the 2018 Act provided by way of exception that a person who committed an offence of assault or battery against an emergency worker acting in the exercise of functions of such a worker was liable to a maximum sentence of twelve months’ imprisonment. The Act came into force on 13 November 2018, some two weeks before this offence was committed. The guidelines to which Mr Hamblett had referred came into force in 2011, based on the law as it stood then. Like common assault and battery, the offence of assaulting a police officer in the execution of his duty contrary to section 89 of the Police Act 1996 carried a maximum sentence of 26 weeks’ custody. The guidelines for sentencing those offences clearly could not be read across and applied to offences as sentenced under the regime introduced by the 2018 Act. It was perfectly clear that Parliament intended the sentencing regime for such offences to be more severe. An approach which simply looked to an uplift from sentences for other offences was not helpful. A better analogy perhaps would be the guidelines for assault with intent to resist arrest, an offence to which the facts of this case came closer, but the maximum sentence for that offence was two years’ imprisonment. In the court’s view there were no existing guidelines to which resort could usefully be had by analogy. The court had to review the sentencing in this case by reference to the overarching requirements that any sentence must be just and proportionate and no more than commensurate with the seriousness of the offending. The court must also bear in mind the clear legislative intent that assaults on public servants doing their work as part of the emergency services should be sentenced more severely than hitherto.
The third reason for rejecting Mr Hamblett’s submissions was the conclusion that, on the approach the court had identified, the offending in this case comfortably crossed the custody threshold. This was an offender in his early thirties with a string of convictions for acquisitive offences and violence who knew that he was about to be arrested for a despicable offence of fraud. It was in that context that, having been approached in a peaceable way, he first used force against two officers in an attempt to resist lawful arrest and escape. When an attempt was made to calm him, he responded with renewed violence, striking a deliberate blow to the face of an emergency worker and bringing him to the ground in the course of the ensuing struggle, causing pain and some actual injury.
Fourthly, it was plainly right in principle to impose a consecutive sentence for this offending, which was separate and distinct from the fraud. Fifth and finally, the court did not consider that the Judge’s notional sentence after a trial was excessive. The court agreed with Mr Hamblett’s approach to this extent: it might be helpful to adopt the decision-making structure that characterised Sentencing Council Guidelines. The court accepted that the harm caused in this instance was not especially serious, but nor was it at the trivial end of the scale. In the context of the offence in question it could properly be regarded as greater harm, and this was a case of higher culpability. The offending was deliberate, determined and premeditated, and it was sustained. This would be offending at the lower end of Category 1 or the upper end of Category 2, if there were guidelines for the 2018 Act. The starting point before consideration of aggravating and mitigating features might not be as high as six months, but there was no mitigation, and when regard was had to the aggravating feature of the applicant’s very bad record, a period of six months was a proper notional sentence after a trial. The court reached that conclusion without regard to one further aggravating feature of the case to which the Judge did not refer: the offending was committed just six weeks after the end of the applicant’s previous custodial sentence. He was thus subject to post-sentence supervision and inevitably in breach of the requirements.
In short, the court was not persuaded that the Judge erred in relation to the sentence for assault, and it certainly did not consider that it was arguable that the overall sentence should be characterised as manifestly excessive, so leave to appeal was refused.