Somers & Anor, R v

Factual and Procedural Background

On 7 July 2014, two offenders were committed for trial to the Crown Court on a single count of unlawfully and maliciously wounding the injured party with intent to do grievous bodily harm, occurring on 27 October 2013. Both offenders pleaded guilty at arraignment on 28 August 2014. On 10 November 2014, the trial judge sentenced them to a three-year determinate custodial sentence, consisting of one year in custody and two years on licence. The Director of Public Prosecutions (DPP) lodged an application for leave to refer the sentences to the Court of Appeal on 8 December 2014.

The incident stemmed from an assault at a bar where the injured party and the two offenders, who were known to each other, were present. The offenders returned to the bar after receiving a false allegation that the injured party had assaulted their mother. CCTV footage showed a violent attack involving punches, stamping, and the use of weapons such as a pool cue and bar stools. The injured party sustained multiple injuries, including bruises, lacerations, and a deep injury to the earlobe requiring plastic surgery. Both offenders were arrested the following morning and remained largely silent during police interviews.

Both offenders had prior convictions related to violent offences and breaches of suspended sentences. Pre-sentence reports described the offenders’ backgrounds, substance use, and assessed their risk of reoffending. The trial judge considered aggravating and mitigating factors, including the early guilty pleas, remorse, and the seriousness of the offence, and imposed the sentences accordingly. The DPP challenged the sentence as unduly lenient.

Legal Issues Presented

1. Whether the original three-year determinate custodial sentence was unduly lenient given the nature and circumstances of the offence.
2. Whether the trial judge erred in the division of the sentence between custody and licence periods, particularly the extended licence period.
3. Whether the trial judge erred in not activating the suspended sentences previously imposed on the offenders.
4. What the appropriate starting point and sentencing range should be for offences involving violent assaults with weapons under section 18 of the Offences Against the Person Act 1861.

Arguments of the Parties

Prosecution's Arguments

• Relied on precedent establishing a sentencing range of 7 to 15 years for section 18 offences involving attacks on a victim on the ground with a shod foot, except in exceptional cases.
• Asserted that the present case did not fall within any exceptional clause and identified several aggravating factors including premeditation, the unprovoked nature of the attack, use of weapons, intoxication, and prior convictions with breaches of suspended sentences.
• Argued that credit for guilty pleas should be limited as the offenders refused to admit guilt during police interviews despite CCTV evidence.
• Contended the trial judge erred by imposing a licence period exceeding half the sentence without proper reasons and by not activating the suspended sentences without sufficient justification.

Defence Counsel for One Offender

• Conceded the trial judge did not identify a starting point before applying the guilty plea discount or adequately explain the decision not to activate the suspended sentence, which is required by statute.
• Noted no prosecution request to activate suspended sentences and highlighted limited disclosure of evidence at police interviews.
• Emphasized the early guilty plea and the offender’s remorse and potential for rehabilitation through community-based programs recommended in medical and probation reports.

Defence Counsel for the Other Offender

• Agreed the trial judge failed to fix a starting point before discounting for the plea, suggesting a starting point between five and seven years based on sentencing guidelines for high culpability and low harm.
• Relied on expert assessment that the offender posed a medium, not high, risk of future violent offending and that the offence was motivated by misguided loyalty.
• Suggested that the licence period reflected the onerous nature of recommended community programs.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the nature of the offence, emphasizing its high culpability due to premeditation, the use of weapons, intoxication, and the serious injuries inflicted. The offenders’ prior convictions and breaches of suspended sentences were significant aggravating factors. The court acknowledged mitigating factors such as early guilty pleas, remorse, and positive conduct since the offence, but these did not outweigh the seriousness of the crime and risk of reoffending.

The court reaffirmed the sentencing range established in prior authority for such violent offences and determined that the original sentence was unduly lenient. It found the starting point before plea discount should have been between seven and eight years, with a minimum five-year sentence after discount for guilty pleas. The court also clarified that the activation of suspended sentences was appropriate given the similarity of the offences and previous breaches, applying the principle of totality to avoid double punishment.

Regarding the licence period, the court noted the lack of sufficient explanation from the trial judge for extending the licence beyond half the sentence and found no material justification to support such an extension. The court substituted the original sentence with a determinate custodial sentence of five years, comprising two years in custody and three years on licence, and ordered the suspended sentences to be implemented concurrently.

Holding and Implications

The court SUBSTITUTED the original sentence of three years with a determinate custodial sentence of five years for each offender, consisting of two years in custody and three years on licence. It also IMPLEMENTED the suspended sentences concurrently in light of the principle of double jeopardy and the similarity of the offences.

The direct effect of this decision is to increase the custodial sentence imposed on the offenders and to activate their suspended sentences, thereby reinforcing the seriousness with which the court treats violent assaults involving weapons and breaches of previous suspended sentences. No new legal precedent was established beyond the application and reinforcement of existing sentencing principles and statutory requirements.