Scott West [2019] EWCA Crim 497
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R v Scott West [2019] EWCA Crim 497 concerned an appeal against a sentence of 16 months’ imprisonment imposed for assault occasioning actual bodily harm. Mr West had pleaded guilty on the day of trial after the indictment was amended to add the assault count. His co-accused, Mr Griffiths, had pleaded guilty to attempted robbery on the original count and received 32 months’ imprisonment.
The offence took place on the afternoon of 14 June 2018 outside a Homebase store in Swansea. The complainant, Mr Nachev, was a lorry driver waiting to deliver goods. Mr Griffiths approached him and demanded his wedding ring. When the complainant declined and returned to his cab, Mr West threw a can of lager at him through the open window. The complainant alighted again, whereupon both men attacked him, punching him to the head and forcing him to the ground. They then kicked and punched him whilst he was down, during which Mr Griffiths tried unsuccessfully to remove his wedding ring. The attack occurred in a busy area and was witnessed by members of the public, some of whom intervened and called the police. Both accused were arrested shortly afterwards in a local public house.
The complainant suffered soft tissue bruising but also significant psychological harm. He remained fearful for his safety and was considering leaving the United Kingdom with his family. He was forced to take time off work to recover, lost his employment as a result, fell into debt, and nearly lost his home. Mr West had a long criminal history including numerous convictions for threatening behaviour and possessing offensive weapons, with his most recent convictions for offensive weapon possession and harassment dating from 2015.
The assault had been committed during the operational period of a suspended sentence order of 10 weeks’ imprisonment imposed by the magistrates’ court on 14 July 2017 for two theft offences and one of failing to surrender. The judge activated that sentence in full to run consecutively to the 16 months, resulting in a total of 16 months and 10 weeks’ imprisonment. The judge had indicated that the assault, absent any guilty plea, merited 18 months’ custody, which he reduced to 16 months to reflect the timing of the plea.
Mr Evans, appearing for Mr West, advanced two grounds of appeal. First, he submitted that the starting point of 18 months before credit for the plea was too high. Second, he contended that the judge had failed to afford sufficient credit for the guilty plea, which Mr Evans argued had been indicated at the first opportunity because the indictment was amended only on the day of trial and the prosecution had previously been adamant that no alternative charge was appropriate. Mr Evans referred to an informal discussion at the pretrial and preparation hearing in July, during which he said the defence had indicated a willingness to plead guilty to assault but the prosecution had declined to consider any alternative.
The Court of Appeal rejected both grounds. Lord Justice Bean, delivering the judgment of the court, held that the assault was clearly a Category 1 offence under the relevant sentencing guidelines. Greater harm was indicated by the sustained nature of the assault, and higher culpability was indicated by the use of a shod foot to kick the complainant whilst he was on the ground. The starting point for such an offence was therefore 18 months’ custody, with a category range of one to three years. The court further found that there were several aggravating factors which would have justified elevating the sentence within that range, including Mr West’s previous convictions, the public location and timing of the offence which meant it was witnessed by bystanders, and the serious ongoing effect on the complainant. The court considered that the applicant was fortunate that a longer period had not been selected.
As to the second ground, the court emphasised that informal discussions between advocates, in the absence of any indication in open court, were insufficient to trigger an entitlement to an early guilty plea discount. The court held that in order to attract such a discount, the accused or his representatives would normally need to notify the court, usually in open court and in the presence of the accused, of a willingness to plead guilty to an alternative offence. No such indication had been made at the pretrial and preparation hearing, and the first notification to the court had been on 17 October 2018, the day of trial, when Mr West pleaded guilty following the amendment of the indictment. The court found that the informal discussion between counsel in July was no more than that and did not constitute sufficient indication of Mr West’s preparedness to plead guilty. The judge had therefore been entitled to conclude that there had been no prior indication of guilt sufficient to attract the full early guilty plea discount, and the approximately 10 per cent credit given was in line with the Sentencing Council guidance for a plea entered on the day of trial.
In short, the court refused permission to appeal, holding that the starting point was entirely appropriate given the offence’s position within the guideline and the aggravating features, and that the credit for the guilty plea properly reflected the timing of the plea on the day of trial.
Also cited as: [2019] 2 Cr. App. R. (S) 27