Williamson [2019] EWCA Crim 259

R v Williamson [2019] EWCA Crim 259 concerned an Attorney General’s reference under section 36 of the Criminal Justice Act 1988 in which the Court of Appeal (Lord Justice Holroyde, Mrs Justice O’Farrell, and His Honour Judge Wall QC sitting as a judge of the Court of Appeal Criminal Division) concluded that a sentence of four years’ imprisonment for causing grievous bodily harm with intent was unduly lenient and increased it to six years and nine months’ imprisonment.

Mr Williamson, aged 36, pleaded guilty on 22 October 2018 at Worcester Crown Court to causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. On 22 November 2018 he was sentenced to four years’ imprisonment. He had been cautioned for offences of assault occasioning actual bodily harm and threatening behaviour as a teenager but had no convictions for violence, and his only previous convictions were more than a decade old and for very different offending. In 2014 his wife had taken her own life, leaving him to care for their two young children, both then aged under ten.

The offence arose after someone stole a cannabis crop that Mr Williamson had been growing in an outhouse at his home to help him cope with his distress following his wife’s death. He was very angry and, after someone suggested that David Ramshaw was the thief, he researched online and discovered Mr Ramshaw’s address. On 15 November 2016, at about 5.30 pm, Mr Williamson went to that address. Mr Ramshaw, who had a partner and a young child, was alone at home at the time. A violent incident occurred in which Mr Ramshaw suffered serious injuries, the most serious being a rupture of his spleen. He also sustained a laceration behind his left ear, swelling of the left ear, abrasions to the left side of his head, a very swollen left elbow, abrasions to the right side of his chest, to his right shoulder and around his neck, a distended and bruised abdomen, a large bruise to his left hip, bruises to his scalp, and a large contusion over his temple. Mr Williamson himself was unscathed.

A friend, Mr Tomlinson, came to the house in answer to a telephone call from Mr Ramshaw and found him obviously injured, vomiting, shaking and crying. Whilst Mr Tomlinson was there, Mr Ramshaw’s wife and child returned and saw him in that state. Shortly after the incident Mr Tomlinson spoke by telephone to Mr Williamson, who was plainly still very angry and used the phrase “when we were smashing the fuck out of your mate”. Mr Tomlinson told him that Mr Ramshaw’s injuries were such that it was necessary to call an ambulance and inform the police. Mr Williamson replied to the effect that if Mr Ramshaw knew what was good for him, he would not talk to the police or there would be more of the same. Mr Ramshaw collapsed upon arrival at hospital and had to be resuscitated. Medical investigation showed that his spleen was so badly damaged that urgent surgical removal was necessary; but for that operation there was a substantial risk that he would have died as a result of internal blood loss. In a statement made some two years after the incident, Mr Ramshaw indicated that for about three months after his discharge from hospital he vomited each day. He developed a hernia which left his stomach swollen and descended, but doctors took the view that he was too weak to cope with an operation. He suffered from low blood iron as a result of the removal of his spleen, which had caused his nails to fall out. He also suffered from depression, withdrew from social life, and had been harmed in the conduct of his business, resulting in financial difficulties that added to his depression and anxiety.

Mr Ramshaw’s account of the incident was that three men, armed with weapons, came into his home and beat him, with Mr Williamson being the main aggressor. Mr Williamson was arrested later on the day of the incident. Freshly washed clothes were found in his washing machine. He told the police he had lost his mobile phone a few weeks earlier, and the police never recovered it, but subsequent investigation of call billing records showed he had in fact been continuing to use his phone until very shortly before his arrest. Mr Williamson’s brother, Kevin Williamson, was also arrested, and both brothers were charged with aggravated burglary, to which they pleaded not guilty. The case was adjourned for trial and came on for hearing on 22 October 2018. On that date, following discussions between counsel, it was proposed that Mr Williamson would plead guilty to a section 18 offence and his brother would plead guilty to an offence of assisting an offender. The indictment was amended to that effect, those guilty pleas were entered, and in due course no evidence was offered on the initial charge of aggravated burglary.

Mr Williamson’s guilty plea was entered on a written basis which stated: “The defendant was not intent upon violence when he went to the property. He did not attend there with a weapon and never went inside. Ramshaw reacted by producing a bat, when confronted about the issue of whether he had stolen the defendant’s cannabis and that was the catalyst for the violence. The defendant admits repeatedly punching him and manhandling him, whilst lawfully defending himself, but his actions became unlawful when Ramshaw dropped the weapon. Thereafter the defendant admits striking him twice, with the requisite intent, angry at the behaviour that had been shown to him.” It was understood that the case was conducted on the basis that Mr Williamson was admitting two unlawful blows with the baseball bat at the end of the incident. The prosecution did not accept that basis of plea, which was very far removed from Mr Ramshaw’s account. In discussions, the judge before whom the trial had been listed indicated that he did not think it necessary for there to be a Newton hearing or trial of the issue. The judge who later had conduct of the proceedings interpreted that as the trial judge having taken the view that even if the factual issues were resolved in favour of the prosecution, it would not make a material difference to sentence because the categorisation of the offence under the Sentencing Guidelines would be the same.

There had been a change of judge because it was discovered that the judge before whom the case had been listed for trial knew someone connected to Williamson. The matter therefore came before a different judge for sentencing on 22 November. That judge, understandably, did not feel able to go behind the earlier decision that no Newton hearing was necessary and, on the basis indicated, also took the view that the categorisation of the offence would be the same on either version of events.

Before the court was a thorough pre-sentence report. The author indicated that Mr Williamson had given him an account of the incident to the effect that he had “flipped” when Mr Ramshaw came at him with a bat. Mr Williamson had told the probation officer that he could not remember striking Mr Ramshaw with any weapon but accepted repeated punching with a closed fist. He also said that at one point he had pinned Mr Ramshaw down by kneeling on his stomach, which he suggested may have been the cause of the ruptured spleen. Mr Williamson told the probation officer that he recognised, with the benefit of hindsight, that he had overreacted to his belief or suspicion that Mr Ramshaw had stolen his cannabis crop. He took responsibility for his actions but also attributed some of the blame to Mr Ramshaw. Mr Williamson also spoke to the probation officer about the death of his wife some two years before the commission of the offence. The author of the report felt it possible to treat this offence as an aberration, possibly influenced by Mr Williamson’s grief at the loss of his wife. He recorded that Mr Williamson was in a new relationship and that his girlfriend was pregnant with their child.

Also before the court were a number of character references in which persons who knew Mr Williamson well, including a retired police officer, spoke highly of him. Mr Williamson himself had written a letter to the court in which he expressed his genuine regret and absolute remorse for his actions. He said that at the time of the incident he was still struggling massively with the loss of his wife which had given him a “never back down approach to life”. He said that at the time he had been walking around with a lot of anger and rage built up inside him, though he had subsequently come to terms with all that had happened in his life. He said that the passage of time since the incident had taught him to walk away and, if faced with a similar situation again, he would. He repeated his remorse for what he had done. He described that in the time since his arrest he had, as a result of the arrest, lost both his home and employment but had subsequently started his own business by which he was earning enough to care for himself and his children.

The prosecution submitted, and the judge accepted, that under the Sentencing Council’s Definitive Guideline this case fell within category one. The judge indicated that he understood the previous judge to have decided that a Newton hearing was unnecessary precisely because it was a category one offence even on Mr Williamson’s account. For such an offence the guideline indicates a starting point of 12 years’ custody and a range from nine to 16 years. In mitigation, counsel emphasised that the court must proceed on the basis put forward by Mr Williamson. He argued for the offence to be treated as a category two offence. He invited the court’s attention to the absence of any premeditation, the fact that Mr Williamson had not gone to the property either armed or intent upon violence, and that the assault had occurred in the heat of the moment after Mr Williamson himself had been attacked. Counsel also drew attention to the fact that only two unlawful blows were struck, for which Mr Williamson had shown real remorse. He said that the nature of the injuries was not such that it would have been immediately obvious to Mr Williamson that the life of his victim was threatened. On that footing counsel argued that the fact that Mr Williamson broke off the attack indicated that in general he was not a violent or hot-headed person. Counsel referred to the testimonials and to Mr Williamson’s own letter and spoke of the difficulty Mr Williamson had had in explaining to his children that having already lost their mother, they would now probably be without him for a time. Counsel further noted that the pre-sentence report was in the favourable terms to which we have referred.

In his sentencing remarks the judge referred to Mr Williamson’s limited previous convictions, his record of hard work, and the loss of his wife. The judge referred to Mr Ramshaw’s injuries as having been “life threatening”. He said that on the written basis of plea, which he felt bound to accept, the appropriate sentence after a trial would have been at the bottom of the category range having regard to the circumstances of the offence. He went on, however, to note that the guidelines permit a judge to move outside a category range in some cases after considering all aggravating and mitigating factors. In the present case the judge identified three features which he viewed as exceptional circumstances which caused him to move down from category one to category two. Those three features were, first, Mr Williamson’s positive good character, as shown by the testimonials, coupled with the context of bereavement which may be connected to Mr Williamson’s loss of control at the time of the offence; in this regard, the judge noted the probation officer’s view that the offence could be viewed as an aberration. The second feature to which the judge pointed was the genuine remorse of Mr Williamson coupled with clear evidence of a change of behaviour on his part, including cessation from drug use. Thirdly, the judge noted the position of the children who, having lost their mother, would now, through their father’s actions, also be deprived of his company for a time.

The judge indicated that he was prepared to allow 25 per cent credit for the plea. He said that for the reasons he had indicated he took the view that the true appropriate sentence after trial would have been one of six years’ imprisonment, which is the starting point for category two. He stated that he could not in all conscience go any lower than that and that it would be an insult to Mr Ramshaw, who had suffered and would continue to suffer for the rest of his life from the consequences of “your evening of madness”. Giving 25 per cent credit, the sentence was one of four years’ imprisonment. The Court of Appeal noted that arithmetically a reduction of 25 per cent from six years would result in a sentence of four years six months, so it appeared the judge had fallen into a simple arithmetical error. The court was informed, however, that after the hearing the judge posted a comment on the Digital Case System in which he indicated that the factors of mitigation which he had mentioned had brought the sentence down to five years four months’ imprisonment not six years, so that the credit for the guilty plea resulted in the final sentence of four years’ custody.

On behalf of the Attorney General, counsel submitted that the sentence was unduly lenient. The case was in category one because it involved greater harm due to the severity of the life-threatening injuries and higher culpability because of the use of the weapon. Because it was a category one offence, the starting point was 12 years, but it was incumbent upon the judge then to move upwards from that starting point to reflect the significant aggravating features that this was an attack upon the victim in his own home and that it had resulted in long-term physical and emotional harm, though counsel rightly noted that care must be taken to avoid double counting that aspect of the injuries which had already placed the case into category one. It was a further aggravating feature that the violence arose out of Mr Williamson’s criminal conduct in cultivating cannabis. Those factors required an upward movement above the guideline starting point. There was undoubtedly significant mitigation, and counsel properly recognised that was so, but that mitigation was not such as could justify the very substantial reduction which the judge made.

On behalf of Mr Williamson, counsel repeated his submissions in terms of the factors which he had relied upon below. Recognising that the judge had placed the case into category one, he nonetheless submitted there was much about it which could fairly be regarded as closer to a category two offence. He emphasised the very sad and difficult position of the children, the pregnancy of Mr Williamson’s current partner, and the exemplary behaviour in prison which was noted in a report prepared for the assistance of the court.

The Court of Appeal observed that in the absence of any Newton hearing the sentencing judge had to sentence on the factual basis contained in the written basis of plea. The court did not know the precise considerations which prompted the trial judge to conclude that no Newton hearing was necessary and therefore did not criticise that decision, but felt bound to observe that it was, on the face of it, a surprising decision. Even if the case would inevitably fall into category one on either version of events, there was a stark difference between an attack by men who had gone to the house armed with weapons and an attack in which Mr Williamson had initially done no more than defend himself and had only struck two blows with a weapon which Mr Ramshaw had initially used against him. On the face of it, that stark difference could be expected to make a difference as to where in the category one sentencing range the appropriate sentence would lie. The court well understood why Mr Ramshaw had made clear his dissatisfaction with that state of affairs and with the course taken by the sentencing process. However, the court emphasised that it must and did consider the application on