Life Threatening Injury in New Sentencing Guidelines

For the first time the Criminal Division of the Court of Appeal considered a reference by the Attorney-General relating to the new Sentencing Council Guideline for causing grievous bodily harm or wounding with intent which took effect on 1 July 2021: R v Charles O’Bryan: Reference by HM Attorney-General Under Section 36 of the Criminal Justice Act 1988 [2021] EWCA Crim 1472: Bean LJ, Jeremy Baker J, Sir Roderick Evans.

The 21-year-old offender, who had no previous cautions or convictions recorded, pleaded guilty at the Inner London Crown Court to causing grievous bodily harm with intent and having a bladed article in public.

Other mitigating factors accepted to be present were that he was a party or connected to a dispute in which he felt threatened, he deployed the knife when he considered the victim was getting the better of him in the fight, and there was some evidence of remorse.

It was common ground that the use of the knife placed the offence in culpability category B: the prosecution accepted that there was insufficient evidence for the judge to be satisfied to the necessary standard that the weapon used, which was never recovered, was a ‘highly dangerous weapon’ so as to make it a case of higher culpability, although the fact that it appeared from the CCTV to have been some kind of flick or lock knife was rightly treated as an aggravating factor in the case.

The categorisation of harm  in the July 2021 Guideline reads:

“All cases will involve ‘really serious harm’, which can be physical or psychological or wounding.  The court should assess the level of harm caused with reference to the impact on the victim.

“Category 1 –

* Particularly grave or life-threatening injury caused.

* Injury results in physical or psychological harm resulting in life-long dependency or third-party care or medical treatment.

* Offence results in a permanent irreversible injury or psychological condition which has a substantial and long-term effect on the victim’s ability to carry out their normal day to day activities or on their ability to work.

“Category 2 –

*Offence results in a permanent, irreversible injury or condition not falling within Category 1.

“Category 3 –

*All other cases of really serious harm.”

The Reference argued that the judge fell into error in concluding that the offence fell into Category 2 in respect of Harm and submitted that the case fell within Category 1 on the basis that life-threatening injury was caused.

It was conceded that there was no statement from a doctor which asserted in terms that the Offender’s injuries were life-threatening, but it was submitted that the evidence established that they were.  Arteries and blood vessels in the abdomen were cut and actively bleeding; there was an injury to the small intestine; the smaller bowel was injured and was actively bleeding.  When police officers arrived soon after the stabbing the victim was losing consciousness.

As the Sentencing Council did not define “life-threatening injury”, the Court felt it would be unwise to attempt a comprehensive definition or substitute wording of their own but was satisfied that where there was no medical expert evidence that the victim’s life was in imminent danger, this was not a case which fell within the Sentencing Council’s classification of life-threatening injury.

The wounding in this case was properly categorised as “grave injury” and thus category 2B.

The principal aggravating factors to be taken into account were the nature of the knife and that the offender inflicted three stab wounds and attempted a fourth. The offender’s youth and good character entitled him to more than a trivial reduction in the starting point which would have applied to an older defendant with a record of previous violent offending.

The Court considered that a starting point of more than seven years’ imprisonment was not justified before discount.  The trial judge had taken a starting point of six years’ and allowed a discount of one third where agreement was reached that the prosecution would accept his plea of not guilty to attempted murder but guilty to the s18 offence.

Accordingly, the judge’s sentence of four years’ imprisonment was not unduly lenient and the Court declined to interfere.