Steven Alexander Harris [2019] EWCA Crim 1126

**R v Steven Alexander Harris [2019] EWCA Crim 1126** concerned an appeal against a sentence of two years’ imprisonment imposed at Ipswich Crown Court on 15 February 2019 for an offence of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. The Court of Appeal (Lady Justice Nicola Davies DBE, Mr Justice Martin Spencer, and His Honour Judge Picton) allowed the appeal in part, reducing the sentence to 20 months’ imprisonment.

Mr Harris had pleaded guilty to the offence and was sentenced on an agreed basis of plea. On 24 February 2018, in the vicinity of The Swan public house, the appellant, then aged 28, struck the complainant, a man of about 50, with a single punch following an argument. The complainant fell to the ground, striking his head on the pavement with a thud. He sustained very serious head injuries, including a fracture to the occipital bone extending into the base of the skull, contusions to the frontal and temporal lobes of the brain, and traumatic subarachnoid bleeding. He also suffered bruising to the back of his head and forehead, a cut to his upper lip, and grazes to both elbows. The injuries left him with altered senses, particularly taste, and affected his confidence and speech. These were life-changing injuries.

The basis of plea, which was accepted, provided that Mr Harris had been provoked by the victim repeating several times that he was going to kill him. CCTV footage from approximately 30 minutes earlier showed the victim attempting to strike Mr Harris’s friend with a bar stool during horseplay. Mr Harris approached the victim and used a single punch to prevent the victim from doing anything to him, unaware that the victim would fall and strike his head. The appellant referred to a previous incident in about 2013 in which he had been threatened with a knife by a man whom he had confronted for verbally abusing three girls. Having seen the CCTV and received legal advice, Mr Harris accepted that his actions were not necessary in all the circumstances because there was distance between him and the victim and he could have moved away. He acknowledged that he should have taken different steps and expressed regret for the injuries caused.

The sentencing judge had before him a pre-sentence report prepared in relation to another matter, which indicated that the appellant had a history of alcohol misuse and mental health issues. About two months after the incident, the appellant had been detained under section 3 of the Mental Health Act 1983. The appellant’s previous convictions included a conditional discharge for battery in 2009, offences under the Police Act 1996 in 2010 and 2018, and a caution for violence. The sentencing judge accepted that there had been provocation in the complainant’s behaviour but found that it was not a case of extreme provocation. He noted that, despite the appellant’s mental health issues and history of offending while intoxicated, the appellant continued to drink considerable quantities of beer, suggesting that he did not share others’ concerns about his mental health.

The judge applied the Sentencing Council guideline and categorised the offence as category 2, involving greater harm because of the seriousness of the injury in the context of the offence, but lower culpability, with a starting point of 18 months’ custody and a range up to three years. This categorisation was not disputed on appeal. The judge identified the following aggravating factors: the appellant’s previous convictions, the fact that he was under the influence of alcohol at the time, the fact that the offence was committed in a public place, and the timing of the offence where others were present. These factors raised the sentence from the starting point of 18 months to 30 months, which was then reduced by 20 per cent to take account of the guilty plea, resulting in a sentence of 24 months. The judge did not consider it possible to suspend the sentence in all the circumstances.

On appeal, Mr Gladwell, appearing for the appellant, did not pursue an argument that a suspended sentence could have been imposed but concentrated on the submission that insufficient account had been taken by the learned judge of the significant provocation which led to the commission of the offence. He argued that the starting point before discount for plea of 30 months’ imprisonment was too high an addition from the starting point of 18 months by reference to the particular aggravating factors. He submitted that too much account was taken of the fact that this was an offence committed in a public place with others present and that insufficient weight had been given to the agreed basis of plea, particularly the first ground that Mr Harris was provoked by the victim repeating several times that he was going to kill him.

The Court of Appeal agreed that an immediate sentence of imprisonment was merited. The previous convictions were a seriously aggravating feature and the victim suffered a substantial injury which could easily have proved fatal. The learned judge was entitled to take the view that appropriate punishment could only be achieved by immediate custody. However, the court accepted Mr Gladwell’s submission that the uplift to 30 months was too high. The court considered that a reasonable uplift for the aggravating features would have been to around 25 months, which could then have been reduced to 24 months for the mitigating factors before the discount for plea was taken. The court therefore substituted a sentence of 20 months’ imprisonment for the original sentence of 24 months. In short, the appeal was allowed to the extent that the sentence was reduced from two years to 20 months’ imprisonment.