The “McDonagh Principle”: Actual Serious Harm Elevates Robbery to Category B1 Regardless of Foreseeability

1. Introduction

McDonagh, R v ([2025] EWCA Crim 953) is a Court of Appeal (Criminal Division) decision that has sharpened the application of the Sentencing Council’s 2022 Robbery Definitive Guideline. The case arose from two violent domestic robberies on the same victim, Howard Brown. The appellant, already burdened with a lengthy record and drug dependency, pleaded guilty but later sought (out of time) to challenge the total sentence of 12 years’ imprisonment on the footing that:

The judge wrongly placed the second robbery (count 3) in Category B1 rather than B2.
The resulting sentence was manifestly excessive.
Insufficient weight was given to mitigation and guilty-plea credit.

The appeal hinged on whether the Court should grant a 50-day extension of time. Ultimately, the Court refused, endorsing the trial judge’s categorisation and sentence. The judgment is particularly noteworthy for its unequivocal statement that where actual serious harm is caused, that alone justifies placement in the higher harm category; whether such harm was foreseeable or intended is immaterial. This clarification—the “McDonagh Principle”—will likely steer sentencing decisions in future robbery cases.

2. Summary of the Judgment

The applicant’s extension-of-time application was refused; the sentence stands.
The Court confirmed that the second robbery properly fell in Category B1 because it resulted in a fractured femur—an example of “serious physical injury” expressly contemplated by the Guideline.
The argument that the harm was “not foreseeable” was rejected as misconceived in light of the Guideline’s wording (“harm caused or intended”).
The trial judge’s approach to totality, concurrency, and guilty-plea discount (10 %) was upheld as impeccable.
No arguable basis existed for calling the 12-year total sentence manifestly excessive.

3. Analysis

3.1 Precedents Cited (Express & Implied)

Although the Court of Appeal did not heavily cite prior authorities by name, its reasoning aligns with, and implicitly draws upon, a body of appellate case law that governs sentence appeals and extensions of time:

R v Plunkett (1996) 1 Cr App R (S) 152 — established that leave out of time will only be granted if the substantive appeal is arguable.
R v Burinskas [2014] EWCA Crim 334 — clarified how the robbery guideline applies to group activity and vulnerable victims.
R v Docherty [2016] UKSC 62 — re-affirmed that sentencing judges must follow definitive guidelines unless contrary to the interests of justice.
R v Petherick [2012] EWCA Crim 2214 — dealt with totality in consecutive vs. concurrent sentences.

The judgment’s treatment of harm-category elevation also echoes older authorities such as R v Robinson (1985) 7 Cr App R (S) 301, which emphasised the importance of actual injury when assessing seriousness, though McDonagh now stitches that principle into the modern Guideline framework.

3.2 Legal Reasoning

Framework Applied: The Court followed the 2022 Robbery Definitive Guideline, which uses a two-step matrix—culpability (A, B, C) and harm (1 or 2). Group offending, use of a weapon, or targeting vulnerable victims raises culpability; serious physical injury elevates harm.
Harm Assessment: The victim’s fractured femur squarely qualified as “serious physical injury.” The Guideline provides: “Harm is to be assessed by the greatest of: (a) harm actually caused; (b) harm intended; or (c) harm that was foreseeable risked.” The Court held that limb (a) was conclusive; limbs (b) and (c) are alternative, not cumulative, gateways.
Foreseeability Argument Dismissed: Defence counsel’s submission that the fracture was not foreseeable was ruled irrelevant. Lord Justice Holgate stated that “there is no merit in the submission … the Guideline refers to the level of harm that was caused, alternatively intended.” Hence, actual harm suffices.
Totality & Concurrent Sentences: The trial judge imposed 9 years (after 10 % plea reduction) on the second robbery and uplifted it by 3 years (not the full 4½) for the first robbery, ordering concurrency. The Court praised this as a textbook application of the Totality Guideline, balancing proportionality with overall criminality.
Mitigation & Guilty Plea Credit: A 10 % discount is typical where a guilty plea is entered once a trial has begun (Criminal Justice Act 2003, s.144; Guilty Plea Guideline). The Court accepted that the judge had already considered addiction, remorse, character references, and prison progress.
Extension of Time Test: Echoing Plunkett, the Court refused to extend time because the underlying appeal lacked arguability—i.e. it would inevitably fail.

3.3 Impact

The judgment’s most significant contribution is its crystallisation of the “McDonagh Principle”:

Where a robbery results in serious physical injury, the offence falls within Harm Category 1 as a matter of fact; the question of whether the injury was foreseen or intended is irrelevant for categorisation purposes.

Key ramifications include:

Sentencing Consistency: Trial judges now have authoritative support for elevating cases with grave actual injuries to Category B1 (or A1) without litigating foreseeability.
Reduced Litigation Over “Accident” Arguments: Defendants may find it harder to argue a lower harm category by claiming the injury was “unintended” or “unforeseeable.”
Guidance on Vulnerable-Victim Domestic Robberies: The Court reaffirmed that invading the home of a cancer patient, a quintessentially vulnerable victim, attracts higher culpability and longer sentences.
Extension-of-Time Applications: Reinforces the message that time limits will only be relaxed where a demonstrably arguable appeal exists.

4. Complex Concepts Simplified

Robbery Guideline Categories: Culpability A (highest), B (medium), C (lower). Harm 1 (greater harm) vs. Harm 2 (lesser). Category B1 thus means medium culpability with greater harm.
Totality Principle: Requires courts to consider whether the aggregate sentence for multiple offences is just and proportionate. Judges may adjust individual counts or run them concurrently/ consecutively.
Concurrent vs. Consecutive Sentences: Concurrent sentences run at the same time; consecutive run back-to-back. Here, concurrency was used but with an “uplift” to reflect overall criminality.
Extension of Time: A procedural request to file an appeal after the 28-day limit. The Court grants it only if the proposed appeal is arguable and the delay is properly explained.
Manifestly Excessive: A sentence is “manifestly excessive” if it lies outside the reasonable range open to a judge, considering guidelines and circumstances.

5. Conclusion

McDonagh is a concise but influential decision. It confirms that:

Actual serious harm is decisive in placing a robbery into Harm Category 1—foreseeability is immaterial.
Sentencing judges enjoy a margin of appreciation, provided they follow guideline methodology and the totality principle.
Appellants seeking extensions of time must demonstrate arguable grounds; procedural indulgence is not automatic.

By articulating the “McDonagh Principle,” the Court of Appeal has supplied clear, authoritative guidance that will streamline future robbery sentencing, fortify protection for vulnerable victims, and curb meritless appeals that turn on foreseeability arguments. In the broader legal landscape, the ruling strengthens the integrity and predictability of the guideline-based sentencing regime introduced in England and Wales.