Stephen Michael Unsworth [2019] EWCA Crim 1135
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R v Stephen Michael Unsworth [2019] EWCA Crim 1135 concerned an Attorney General’s reference of sentence under section 36 of the Criminal Justice Act 1988 which the Court of Appeal (Lord Justice Simon, Mr Justice Lavender and His Honour Judge Edmunds QC) allowed, increasing the total sentence from eight and a half years to ten years and six months.
Mr Unsworth, aged 36, had pleaded guilty to three counts of robbery (counts 1 to 3), wounding with intent to resist arrest contrary to section 18 of the Offences against the Person Act 1861 (count 4), and having a bladed article (count 5). At the Crown Court at Bolton before His Honour Judge Walsh, the Recorder of Bolton, he had been sentenced to four years and six months’ imprisonment on each robbery count and on the bladed article count, all concurrent, with four years’ imprisonment consecutive on the section 18 offence, making eight and a half years in total. Forfeiture of the knife had been ordered.
The facts were that on 7 October 2018, shortly before 10.00 pm, Mr Unsworth entered a convenience store armed with a kitchen knife with a six-inch blade. He threatened two female shop assistants, telling Ms Ashcroft “I don’t want to hurt you. I’ve seen the cash, I want the cash” and Ms Leyland “I don’t want to stab you but I will if I have to”, holding the knife to her back. He forced the women to open the tills, taking approximately £150, and screamed at them when Ms Ashcroft said she would switch off the alarm. He took small change from Ms Leyland’s purse and, in her desperation to placate him, she told him to take cigarettes and alcohol. He filled a crate with stock worth about £650. He then took Ms Ashcroft’s purse but gave back her bank cards before leaving.
Police Constable Lamb and Police Constable McCoombes responded to the call and saw Mr Unsworth leaving the shop heavily laden. Police Constable Lamb, in full uniform, gave chase on foot shouting “Police” to identify himself. He grabbed Mr Unsworth from behind but saw a silver flash as Mr Unsworth produced the knife and swung his arm, striking the officer six or seven times to the right side of his body. Police Constable Lamb felt his body armour moving with the force of the blows and realised he was being stabbed. He pulled Mr Unsworth to the ground, where he continued to struggle violently. Police Constable McCoombes dived on Mr Unsworth’s back and, realising his colleague had been attacked, struck him to the back of the head and activated his emergency radio button. Mr Unsworth continued to struggle until Police Constable McCoombes drew his taser and activated the arc mode. Only then did Mr Unsworth stop struggling and allow himself to be handcuffed. Police Constable Lamb suffered three small puncture wounds to his elbow, stomach and under his arm, and there were perforations to his body armour and clothing. The knife blade was found broken in two where Mr Unsworth had been detained.
Mr Unsworth, who was recognised by Police Constable Lamb from previous encounters, was arrested for robbery and wounding with intent to resist arrest. He was found to have approximately £150 on his person. While awaiting interview he asked how the officer was and said “Tell him I’m sorry. I didn’t know he was the police”. In interview he gave no comment answers but at the end complained that police had assaulted him, saying he had been punched repeatedly at the back of the head and stamped on. He claimed he did not know his pursuer was a police officer, said he was attacked from behind and punched, and that he only produced the knife after being punched and stamped on. He denied that the officer had identified himself.
Mr Unsworth, aged 36, had 40 previous convictions for 77 offences. His record began with non-dwelling burglaries in 1995 when he was 12, progressing to dwelling burglary by 2000. He had been convicted of resisting or obstructing a police officer in 2000. In 2001, aged 17, he was convicted of robbery and sentenced to 30 months’ imprisonment consecutive to an earlier sentence. In 2004 he was convicted of escaping from custody and sentenced to six months consecutive. In 2008 he was convicted of burglary and common assault and sentenced to 35 months. In 2015 he was convicted of having a bladed article in a public place, receiving four weeks consecutive to an existing sentence. On 6 March 2018 he was again convicted of having a bladed article and sentenced to six months’ imprisonment. He was on licence for this latter offence at the time of the present offences.
A probation report dealing with his supervision following the March 2018 sentence recorded that his compliance had been poor. He had been recalled five times for non-engagement and was facing breach proceedings. He had shown no inclination to comply with licence requirements and did not avail himself of help offered. He had asked for mental health referrals but failed to attend appointments, and similarly failed to attend medical appointments for substance misuse treatment.
A psychiatric report instructed by the defence referred to Mr Unsworth’s long history of substance misuse, most recently heroin and crack cocaine. He had reported feeling “paranoid” at the time of the offence and had used heroin, crack cocaine and pregabalin (a prescription medication for epilepsy and anxiety sometimes taken by drug users with opiates). The psychiatrist considered that Mr Unsworth’s drug use had likely resulted in a degree of suspiciousness and paranoia which became more severe under the influence of drugs, particularly cocaine. However, there was no evidence of disturbed or abnormal behaviour, speech or thought suggesting mental disorder during the offences themselves. The psychiatrist considered it more likely that Mr Unsworth was experiencing the transient mental effects of intoxication rather than a psychotic episode.
The impact on the victims was substantial. Ms Leyland still worked at the shop but now had to be helped to lock up at night because she was so nervous. She was frightened to be in her house alone and would stay at her mother’s if her partner was away. She had been prescribed antidepressants for anxiety and had sleeping problems. Ms Ashcroft wore a panic alarm around her neck at all times and, although she continued to work at the shop, was unable to stop watching the door. She visited Ms Leyland when they were working different shifts to reassure her. Police Constable Lamb stated that he was now wary of being injured at work and was hesitant when dealing with conflict. He and his partner were both worried that he could have been seriously injured or killed. Police Constable McCoombes described the realisation that not only had a colleague and friend been injured and that he himself could have been stabbed, but that either of them could have been seriously injured or worse.
Mr Unsworth pleaded guilty to counts 1 to 3 and count 5 on 5 November 2018 but pleaded not guilty to count 4. On 12 March 2019 he offered a plea to a section 20 offence which the prosecution rejected. On 19 March he was re-arraigned and changed his plea to guilty on count 4. The sentencing hearing was listed on 29 March when submissions were made on the applicability of the section 18 Sentencing Council Guidelines, and the matter was adjourned to 1 April for the judge to reflect. Before that date the prosecution provided a sentencing note and authorities including Smith (Craig William) and Cheetham indicating that the definitive guideline on section 18 wounding was relevant to the court’s consideration.
The Recorder gave 25 per cent credit for the guilty pleas to counts 1 to 3 and count 5 entered at the plea and trial preparation hearing, and 20 per cent credit for the count 4 plea entered six days before trial. He referred to Mr Unsworth’s previous convictions including two for possession of weapons and the fact that he was on licence. He commented that the previous convictions were largely the result of drug addiction. He considered an extended sentence but concluded that the gravity could be dealt with by a significant determinate sentence. For the robbery offences he found that some physical violence was used and the knife had been produced, placing culpability in category A, and that the victims were traumatised although they suffered no serious enduring physical or psychological harm, placing harm in category 2. This was therefore a category 2A offence under the Guidelines. The vulnerability of the victims was an additional aggravating factor. The appropriate sentence after trial would have been six years’ imprisonment concurrent on each robbery count, reduced by 25 per cent to four and a half years concurrent. The Recorder made no reference to mitigating factors and in particular made no finding that Mr Unsworth had shown remorse.
The Recorder observed that the section 18 offence did not fit easily into the guidelines as the intent was not to cause grievous bodily harm, but Mr Unsworth had nevertheless used a knife repeatedly in an attempt to stab a police officer. He noted that although only minor injury was actually inflicted, Mr Unsworth attempted to stab a police officer with a knife to resist arrest, and that serious injury or worse was avoided only because the officer was wearing body armour. Having regard to totality and applying a 20 per cent reduction for the later guilty plea, he imposed four years’ imprisonment on count 4, indicating a notional starting point of five years.
The Solicitor General submitted that the aggregate sentence failed adequately to reflect the seriousness of the offending and that, in relation to count 4, the starting point of five years was too low and the credit of 20 per cent was too high. Ms Przybylska, appearing for the Attorney General, accepted that the sentences for robbery and the bladed article could not be said to be unduly lenient, but argued that there were numerous aggravating factors: Mr Unsworth’s previous convictions, the commission of offences while on licence, the vulnerability of the victims (two women alone in a shop at night for the robberies; an unarmed officer for the arrest offence), and the ongoing effect on the victims. She submitted there were no mitigating factors, and did not accept that Mr Unsworth’s statement that he did not realise Police Constable Lamb was a police officer and thought someone was attacking him was either genuine or reasonable or afforded mitigation.
Mr Treble, for Mr Unsworth, made several points. First, the judge was entitled to have regard to the section 18 guidelines and did so. Second, the material distinction was that the intent was to resist arrest, not to cause really serious harm. Third, while accepting the use of a knife indicated higher culpability, he submitted that Mr Unsworth lashed out in panic and his intention was not to cause serious injury but to escape. Fourth, although the victim was a police officer acting in the course of duty, this was mitigated by Mr Unsworth not knowing he was a police officer, and this together with expressions of remorse amounted to substantial mitigation. Fifth, the injuries were mercifully minor and most arrest offence cases involved significantly more serious injury. Sixth, in Smith (Craig William) the court regarded a starting point of six years and a sentence of four and a half years as severe where injuries were comparable. Finally, the 20 per cent reduction was justified by delays caused by negotiations between the parties.
Lord Justice Simon, giving the judgment of the court, began by noting that section 18 of the 1861 Act provided that whoever unlawfully and maliciously wounded or caused grievous bodily harm to any person with intent to resist or prevent lawful apprehension should be guilty of an offence carrying a maximum sentence of life imprisonment. As pointed out in R v Haywood [2014] EWCA Crim 2006, although the Sentencing Council Guidelines for causing grievous bodily harm with intent and wounding with intent to cause grievous bodily harm did not specifically cover the arrest offence, those offences carried the same maximum penalty of life imprisonment. For this reason that court had indicated that a sentencing judge was entitled to have regard to the guidelines, although not bound to apply them.
The Court of Appeal observed that doubtless one reason for the approach in Haywood was that what was identified as a specific aggravating factor in the section 18 guidelines—offences committed against those working in the public sector—was likely to be a usual if not invariable feature of the arrest offence. The utility of the guidelines was that they identified culpability and harm factors that might be present in the arrest offence, although the nature of the arrest offence was that violence was usually inflicted against those charged with enforcing the law by making an arrest, which was treated as simply an aggravating factor under the section 18 Guidelines.
The court reviewed the authorities. In R v Talbot [2012] EWCA Crim 2322 a car was driven deliberately at an off-duty police officer who was thrown onto the bonnet and then onto the ground, hitting his head, before the defendant drove over his legs. The victim suffered a laceration to the head and a broken leg. A starting point of ten years and a sentence of eight years was not regarded as manifestly excessive. Haywood was a renewed application refused, with similar facts to Talbot, where deliberate driving at a police officer in a getaway car causing serious injury led to a sentence of eight years and nine months after a late plea which was held not to give rise to arguable grounds of complaint. In R v Smith (Craig William) [2019] 1 Cr App R (S) 30 the appellant charged at a police officer with a serrated knife and struck his hand near the base of the thumb, which needed stitching. Smith had a poor record for offences involving the police. The sentencing judge had taken a starting point of six years reduced by 25 per cent for the guilty plea. The court considered four and a half years severe but not manifestly excessive. In R v Cheetham [2019] EWCA Crim 288 the appellant was charged with a section 18 assault on a police officer while being pursued after a knifepoint robbery. The defendant punched the officer to the ground and used the officer’s own handcuffs as a knuckleduster to hit him repeatedly. The officer was badly injured and was off work for four months and thereafter confined to restricted duties. The court considered it a category 1 offence within the guidelines, for which the starting point was 12 years, and considered the offence by itself would have justified a starting point of 14 years.
The court stated that these cases showed the differing circumstances in which the arrest offence could be committed and therefore the range of sentences that might be appropriate depending on seriousness. The present case was marked by a number of aggravating features. Mr Unsworth was fleeing from the scene of a serious offence carrying a knife. Criminals do not carry weapons as ornaments. He had already told Ms Leyland that he would stab her if he had to. He attacked a police officer with a knife to resist arrest. The court did not accept that Mr Unsworth was entirely unaware that Police Constable Lamb was a police officer as he stabbed him six or seven times, not least because the officer was in full uniform. He struck the officer repeatedly and forcefully with the knife and the only reason more serious injury was not caused