Director of Public Prosecutions v Bannerton (Approved)

Factual and Procedural Background

This opinion concerns an application brought by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act 1993, seeking a review of sentence on grounds of undue leniency. The Respondent pleaded guilty on 27th July 2020 to one count of assault causing serious harm contrary to section 4 and one count of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. The Respondent was sentenced to six years' imprisonment with the final 18 months suspended for the section 4 offence, and two years' imprisonment for the section 3 offence, with sentences running concurrently.

The offending relates to two separate assaults in the early hours of 15th June 2019 in a city centre. The first assault involved the Respondent striking and kicking an injured party, resulting in a fractured clavicle and a lacerated lip. The second assault occurred minutes later when the Respondent attacked a second injured party who intervened as a good Samaritan, causing serious head injuries including a skull fracture. The victims received medical treatment at local hospitals and one remains under ongoing outpatient care.

The sentencing judge identified headline sentences of nine years for the section 4 offence and three years for the section 3 offence, later reduced to six years and two years respectively after mitigation. The final 18 months of the six-year sentence was suspended for five years to encourage rehabilitation, based on psychiatric and probation reports.

Legal Issues Presented

1. Whether the sentencing judge failed to fully appreciate the gravity of the offences;
2. Whether the sentence imposed departed significantly from the norm expected for such offences;
3. Whether the sentencing judge failed to adequately consider the deterrence aspect of sentencing;
4. Whether the sentencing judge failed to give sufficient regard to aggravating factors;
5. Whether the sentencing judge gave excessive weight to mitigating factors;
6. Whether the sentencing judge failed to properly consider the victims' character, victim impact statements, and the effect of injuries on their lives.

Arguments of the Parties

Applicant's Arguments

• The sentencing judge erred by not imposing a sentence reflecting the gravity, culpability, and impact on victims, resulting in a departure from the norm.
• Mitigating factors were given excessive weight, leading to an undue reduction of sentence.
• The judge should have imposed consecutive rather than concurrent sentences to reflect harm caused to two separate victims.
• The reduction and suspension of part of the sentence resulted in an effective 50% reduction, departing from sentencing norms.
• The sentencing judge failed to sufficiently consider deterrence and retribution.
• The Respondent's guilty plea merited less mitigation given the presence of CCTV evidence and eyewitnesses.
• The Respondent’s history of previous convictions, including four for assaults, was relevant and should have influenced sentencing.
• The Respondent’s alcohol issues should not be treated as mitigating, citing precedent.

Respondent's Arguments

• The Director must demonstrate a clear and significant departure from the norm to justify intervention, which has not been shown.
• The sentencing judge's headline sentence was within accepted ranges and was not challenged by the Director.
• The judge carefully considered victim impact evidence and all relevant reports before sentencing.
• The imposition of concurrent sentences was appropriate given the circumstances and no prior submission for consecutive sentences was made at sentencing.
• Deference should be given to the sentencing judge’s discretion and reasoning, supported by relevant case law.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court recognized the seriousness and gravity of the offences, emphasizing the unprovoked nature of the assaults and the significant, ongoing impact on the victims, including one described as a good Samaritan. The Court acknowledged the Respondent’s relevant prior convictions and noted the medical evidence of harm.

The Court accepted the headline sentence of nine years for the section 4 offence and three years for the section 3 offence as appropriate and within the expected range. It further acknowledged the sentencing judge’s reduction of the sentence to six years and two years respectively after considering mitigating factors such as the Respondent’s guilty plea, remorse, alcohol issues, mental health, and background difficulties, supported by probation and psychiatric reports.

While the Court indicated it might have imposed a harsher sentence if sentencing initially, it stressed the established jurisprudence that appellate courts should not interfere unless there is a substantial departure from the norm. The Court noted that the Director did not challenge the headline sentence but focused on the suspension of part of the sentence and the concurrency of sentences.

The Court found the sentencing judge’s decision to suspend the final 18 months to incentivize rehabilitation justified by the evidence of the Respondent’s engagement with probation and psychiatric services. The Court gave due deference to the sentencing judge’s careful and detailed consideration of reports and victim impact evidence, as well as the judge’s discretion in structuring the sentence.

Ultimately, the Court concluded that although the sentence was lenient and at the outer limits of leniency, it did not constitute a substantial departure from the norm warranting interference.

Holding and Implications

The review of the sentence is dismissed.

The Court’s decision means the sentence imposed by the sentencing judge stands as delivered, including the concurrent sentences and the suspension of the final 18 months of the six-year term. No new precedent was established, and the decision reinforces the principle that appellate courts will not interfere with sentencing unless a substantial departure from the norm is demonstrated. The ruling underscores the importance of judicial discretion, especially when supported by detailed reports and evidence relating to rehabilitation and victim impact.