Philip Duesbury [2019] EWCA Crim 1555

R v Philip James Duesbury [2019] EWCA Crim 1555 concerned an appeal against sentence by the Court of Appeal, which was dismissed.

The appellant had been convicted after trial of causing grievous bodily harm with intent (count three), wounding with intent (count four), and having an offensive weapon (count two). He pleaded guilty to possession of a bladed article (count five) and theft. On 20th December 2018 at Derby Crown Court, His Honour Judge Bennett imposed an extended sentence of 23 years on count three, comprising a custodial term of 18 years and an extended licence period of five years. Concurrent sentences of ten years’ imprisonment on count four, twelve months’ imprisonment on count two, nine months’ imprisonment on count five, and one month’s imprisonment for theft were also imposed. The single judge granted leave to appeal.

The offences arose on 29th March 2018 when the appellant encountered his former partner, Miss Kimberley Chand, and her new partner, Mr Damian Round, in Derby. The appellant was armed with a large kitchen knife. A confrontation arose, during which the appellant produced the knife and thrust it downwards into Miss Chand’s face, causing a severe slashing injury to her left cheek. When he moved to strike her again, Mr Round intervened, and the appellant stabbed him through the left hand. At trial the appellant claimed Mr Round had produced the knife and that he acted in self-defence. The jury rejected this account. The theft involved shoplifting on 1st March 2018, when the appellant was arrested and discarded a knife into a bin, giving rise to the bladed article offence. The remaining offences were committed whilst he was on bail for those earlier matters.

The sentencing judge assessed count three as a category one offence under the relevant guideline, attracting a starting point of twelve years’ custody and a range of nine to sixteen years. He concluded the offence was at the very top of the range and increased the upper figure of sixteen years by two years to reflect the second victim, Mr Round, making the sentence for the attack on him concurrent. The judge found the appellant dangerous, justifying the extended sentence.

The appellant, aged 35, had sixteen convictions for 39 offences. His antecedents included possession of offensive weapons in 2001 and 2004, wounding with a pocketknife in 2004 that resulted in two years’ detention in a young offender institution, an offence contrary to section 20 of the Offences against the Person Act 1861 in 2013 in which he stabbed a victim in the face (18 months’ imprisonment), and assault occasioning actual bodily harm in 2013 when he threw boiling water over a victim (27 months’ imprisonment). Miss Chand declined to give evidence or allow access to her medical records, but photographs showed a very serious and substantial gash to her cheek that would lead to permanent and visible scarring. Unused material indicated that a metal plate had been inserted into her cheek to address potential nerve damage, though this may have been temporary. Mr Round’s hand was stabbed through.

On appeal, Mr Taylor submitted on behalf of the appellant that the sentence on count three was manifestly excessive. No challenge was made to the categorisation of the offence as category one or to the finding of dangerousness. The defence contended that the judge may have proceeded on the basis that Miss Chand’s injury was more serious than it actually was and that he was not justified in going to the very top of the guideline range. A subsidiary point was raised concerning whether the magistrates had power under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 to commit the appellant for sentence on the theft, though the Court regarded this as academic given the concurrent one-month sentence.

The Court of Appeal, in a judgment given by the Common Serjeant (His Honour Judge Marks QC), sitting with Lord Justice Gross and Mr Justice Stuart-Smith, identified a number of serious aggravating features. These were that the appellant was on bail at the time of the section 18 offences, his previous convictions for violence and possession of weapons, the fact that he intended to cause more serious harm to Miss Chand and the case involved transferred malice concerning Mr Round (whilst acknowledging the need to avoid double counting), the attack took place in the street during daylight hours, and there were two victims who both suffered severe injuries.

The Court acknowledged that the sentence imposed on count three was harsh but held that it was not manifestly excessive when regard was had to the aggravating features identified. In short, the appeal against an 18-year custodial term within an extended sentence for causing grievous bodily harm with intent was dismissed, the Court finding that the judge’s evaluation of the seriousness of the offending and the appellant’s culpability was justified by the multiple aggravating factors present.