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Wounding or Inflicting Grievous Bodily Harm with Intent

Date Produced: 13 March 2013

Title: Offences against the Person

Offence: Wounding of inflicting Grievous Bodily Harm with Intent

Legislation: Offences against the Person Act 1861 section 18

Mode of Trial: Indictable only

Statutory Limitations & Maximum Penalty:  Life imprisonment

Relevant Sentencing Guidelines

The Sentencing Council's 'Assault Definitive Guideline' applies to all offenders aged 18 and over sentenced on or after 13 June 2011, regardless of date of offence.  Section 18 offences are covered at pages 4 - 6 therein.

STEP 1 - Determine the offence category.

  • Category 1: Greater harm (serious injury must normally be present) and higher culpability
  • Category 2: Greater harm (serious injury must normally be present) and lower culpability; or lesser harm and higher culpability
  • Category 3: Lesser harm and lower culpability

 
The court should determine culpability and harm caused, or intended, by reference only to the factors listed in full below at STEP 1 HARM AND CULPABILITY FACTORS (as demonstrated by the presence of one or more). These factors comprise the principal factual elements of the offence and should determine the category.

STEP 2 - Use starting point to reach a sentence within the category range. It applies irrespective of plea or previous convictions. A case of particular gravity could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, listed in full below at STEP 2 SERIOUSNESS FACTORS

  • Category 1 
    Starting Point (Applicable to all offenders):
    12 years' custody 
    Category Range (Applicable to all offenders): 9 - 16 years' custody
  • Category 2 
    Starting Point (Applicable to all offenders):
    6 years' custody 
    Category Range (Applicable to all offenders): 5 - 9 years' custody
  • Category 3 
    Starting Point (Applicable to all offenders):
    4 years' custody 
    Category Range (Applicable to all offenders): 3 - 5 years' custody

STEP 3 - Any other factors which indicate a reduction, such as assistance to the prosecution

STEP 4 - Reduction for guilty pleas

STEP 5 -  Dangerousness - serious specified violent offence, and Schedule 15A CJA 2003 applies

STEP 6 - Totality principle

STEP 7 - Compensation and ancillary orders

STEP 8 - Reasons

STEP 9 - Consider remand time

STEP 1 HARM AND CULPABILITY FACTORS

HARM

Factors indicating greater harm
  • Injury (which includes disease transmission and/or psychological harm) which is serious in the context of the offence (must normally be present)
  • Victim is particularly vulnerable because of personal circumstances
  • Sustained or repeated assault on the same victim
Factors indicating lesser harm
  • Injury which is less serious in the context of the offence

CULPABILITY

Factors indicating higher culpability

Statutory aggravating factors:

  • Offence racially or religiously aggravated
  • Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation)
  • Offence motivated by, or demonstrating, hostility to the victim based on the victim's disability (or presumed disability)

Other aggravating factors:

  • A significant degree of premeditation
  • Use of weapon or weapon equivalent (for example, shod foot, headbutting, use of acid, use of animal)
  • Intention to commit more serious harm than actually resulted from the offence
  • Deliberately causes more harm than is necessary for commission of offence
  • Deliberate targeting of vulnerable victim
  • Leading role in group or gang
  • Offence motivated by, or demonstrating, hostility based on the victim's age, sex, gender identity (or presumed gender identity)

Factors indicating lower culpability

  • Subordinate role in group or gang
  • A greater degree of provocation than normally expected
  • Lack of premeditation
  • Mental disorder or learning disability, where linked to commission of the offence
  • Excessive self defence

STEP 2 SERIOUSNESS FACTORS

The following lists are non-exhaustive

Factors increasing seriousness

Statutory aggravating factors:
  • Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
  • Offence committed whilst on bail
Other aggravating factors include:
  • Location of the offence
  • Timing of the offence
  • Ongoing effect upon the victim
  • Offence committed against those working in the public sector or providing a service to the public
  • Presence of others including relatives, especially children or partner of the victim
  • Gratuitous degradation of victim
  • In domestic violence cases, victim forced to leave their home
  • Failure to comply with current court orders
  • Offence committed whilst on licence
  • An attempt to conceal or dispose of evidence
  • Failure to respond to warnings or concerns expressed by others about the offender's behaviour
  • Commission of offence whilst under the influence of alcohol or drugs
  • Abuse of power and/or position of trust
  • Exploiting contact arrangements with a child to commit an offence
  • Previous violence or threats to the same victim
  • Established evidence of community impact
  • Any steps taken to prevent the victim reporting an incident, or obtaining assistance and/or from assisting or supporting the prosecution
  • Offences taken into consideration (TICs)
Factors reducing seriousness or reflecting personal mitigation
  • No previous convictions or no relevant/recent convictions
  • Single blow
  • Remorse
  • Good character and/or exemplary conduct
  • Determination, and/or demonstration of steps taken to address addiction or offending behaviour
  • Serious medical conditions requiring urgent, intensive or long-term treatment
  • Isolated incident
  • Age and/or lack of maturity where it affects the responsibility of the offender
  • Lapse of time since the offence where this is not the fault of the offender
  • Mental disorder or learning disability, where not linked to the commission of the offence
  • Sole or primary carer for dependent relatives

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Case law following issue of the Sentencing Council definitive guideline

Cases

Category 1 cases

Walsh [2012] EWCA Crim 1276
Main victim confined to a wheelchair, many other consequences, attempted robbery, aggravating features.  The sentencing judge treated appellant as being of good character, fixed sentence at 18 years (above the top of category 1 range), gave full credit for guilty plea, and set the minimum IPP term at six years.  Sentence upheld.

Fadairo [2012] EWCA Crim 1292 
Stab wound just under eye.  The Court of Appeal proceeded on the following basis: 1) greater harm had not been caused, 2) the requirement of greater harm is qualified by the word "normally" and 3) Step Two states "In some cases, having considered these factors, it may be appropriate to move outside the identified category range."  Decision to move outside category 2 and sentence of 11 years detention in a YOI following trial upheld.

McLaughlin [2012] EWCA Crim 1484
Prolonged, merciless attack (walking stick, punching and stamping) on partially disabled man.  Broken arm, two broken fingers, broken nose, cut requiring eight stitches, laceration.  Record of violence.  Submission that offence fell within category 2 advanced on the basis that injuries were less serious than can be found in section 18 offences rejected.  Held that aggravating features justified placing the offence in category 1.  IPP with a minimum of six years following guilty plea upheld.

Moustafa [2012] EWCA Crim 1865
Appellant stabbed abdomen with knife - a short physical distance from causing a fatal injury.  Guilty plea.  Sentencing judge stated: "I am required to consider for the purposes of culpability not only the harm actually caused, or the harm which it was intended should be caused, but also that which the offence might foreseeably have caused."  Court of Appeal agreed that greater harm had been inflicted.  IPP reduced to minimum of four years.

Whether category 1 or category 2 case

Collis [2012] EWCA Crim 1335
Life threatening knife wound treated as greater harm.  Court of Appeal held that the case did not fit comfortably into either higher or lower culpability: use of weapon pointed towards higher culpability, whereas grabbing weapon in the heat of the moment, provocation and excessive self-defence pointed towards lower culpability.  Nine years (bottom of category 1 range and top of category 2 range) taken as starting point by Court of Appeal, guilty plea, so sentence reduced to six years.    

Whether category 2 or category 3 case

Jenkins [2012] EWCA Crim 1703
Stabbing, wounds stitched, in hospital for two days.  Appellant aged 62 and of good character.  Court of Appeal considered that the case fell somewhere between category 2 and category 3 - arguably not greater harm, use of a knife indicated higher culpability whereas lack of premeditation, depression and medication indicated lower culpability.  Convicted following trial, sentence reduced to 4 and a half years.

Category 3 case

Attorney-General's Reference No 66 of 2012, Nicholls [2012] EWCA Crim 3120
History of provocation, victim shouted abuse and provoked confrontation by deliberately blocking offender's path with his car, offender used Stanley knife or similar instrument to inflict 4 centimetre full thickness cuts to his jaw, almost completely to the bone, forearm and between left middle and ring fingers.  Convicted after trial.  No previous conviction for violence.  Court of Appeal agreed that the case was at the top of category 3.  Sentence of 2 years held to be unduly lenient and increased to 4 years.

Lesser role in joint enterprise

R. v Grubb [2012] 2 Cr. App. R. (S.) 43
Eleven years' imprisonment imposed on a woman who took part in a joint enterprise revenge attack.  She slapped and punched the victim on two occasions.  Sentence reduced to eight years, having regard to her lesser role in the attack and personal mitigation.

Reduction in length of sentence for youths

R v MG [2012] EWCA Crim 2903
Offender aged 17 at time of offence.  Convicted after trial.  Court of Appeal decided that the appropriate starting point before allowance for age, immaturity and efforts made by appellant to improve his life prospects was 13 and a half years, and then reduced sentence to 8 years detention in a YOI.

R v TL [2012] EWCA Crim 2291
Offender aged 15 at time of offence.  Court of Appeal decided that the appropriate sentence after trial for adult would have been around 14 years, allowing discount for relative youth would have reduced sentence to around 10 and a half years.  Credit for guilty plea reduced sentence to 7 years detention in this case.

Recent Decisions in Current Sentencing Practice at B2-2.3. 

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