Hassan, R. v [2024] EWCA Crim 1860 (06 February 2024)

Neutral Citation Number: [2024] EWCA Crim 1860 Case No: 202301802/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL 6th February 2024 B e f o r e : VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (Lord Justice Holroyde) MR JUSTICE MORRIS MR JUSTICE BRYAN ____________________ R E X - v - MOHAMMED HASSAN ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ Ms A Bache appeared on behalf of the Appellant ____________________ HTML VERSION OF JUDGMENT (APPROVED) ____________________ Crown Copyright © This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. Tuesday 6 th February 2024 LORD JUSTICE HOLROYDE: I shall ask Mr Justice Morris to give the judgment of the court. MR JUSTICE MORRIS: On 22 nd July 2021, in the Crown Court at Birmingham, the appellant pleaded guilty to three offences: Putting a person in fear of violence, contrary to section 4 of the Protection from Harassment Act 1997 (count 3); Assault by beating, contrary to section 39 of the Criminal Justice Act 1988 (count 4); and Dangerous driving, contrary to section 2 of the Road Traffic Act 1988 (count 5). On 21 st December 2022, at the same court, the appellant was convicted of an offence of attempted murder, contrary to section 1 of the Criminal Attempts Act 1981 (count 1). On 14 th April 2023, the appellant was sentenced as follows: in respect of the offence of attempted murder, 21 years' imprisonment; for the offence of putting a person in fear of violence, 9 months' imprisonment; for the offence of assault, 3 months' imprisonment; and for the offence of dangerous driving, 12 months' imprisonment. The sentences in respect of the latter three offences were ordered to be served concurrently with the sentence for attempted murder. In addition, the appellant was made subject to a restraining order and disqualified from driving for a period of 17 years and until an extended test is passed. The appellant now appeals against sentence with the leave of the single judge. The Facts The facts of the case are as follows. At just after 8 pm on 24 th April 2021 there was an incident in which the appellant first struck Mr Saeed Alam with his vehicle, did a three point turn in the road, came back and ran him over, striking his body for the second time. That relates to the offence charged in count 1. The background was a complex and difficult relationship involving the appellant's sister-in-law, Bushnoora Hassan, who had previously been married to the appellant's brother. The appellant and Mr Alam had known each other since 2013, and had become reacquainted in 2018. The appellant then became instrumental in arranging a marriage between Mr Alam and Ms Hassan. Following the marriage, the appellant engaged in a campaign of harassment towards Ms Hassan. Over an eight month period the appellant put Ms Hassan in fear of violence by harassment. In the course of that period Ms Hassan had become pregnant. The appellant threatened to hurt her if she told anyone about her marriage to Mr Alam, repeatedly required her to provide him with details about where she and Mr Alam went together, repeatedly turned up at her house excessively, unannounced and uninvited. On 22 nd April 2021, he turned up at her friend's door and told the friend to call Ms Hassan downstairs. He forced her into his car and to go with him. These are the events which formed the subject of count 3 (putting a person in fear of violence). In the course of forcibly removing Ms Hassan from the house on 22 nd April, the appellant threatened to kick her tummy and kill her baby, twisted her left hand, smacked her head, grabbed her arm and then forcibly removed her from the house. This is the conduct which is the subject of the assault on count 4. We turn to counts 1 and 5. Two days later, on 24 th April 2021, the appellant asked Mr Alam to help him do some work removing rubbish from a house in Dudley. Mr Alam did that but then left the address without telling the appellant where he was going. The appellant went after him in his Subaru car. He became very angry and accused Mr Alam of lying. They both agreed to go to the local mosque in order to swear an oath on the Quran. On the way to the mosque, in the car, the appellant pulled at Mr Alam's beard. As a result, Mr Alam pulled the handbrake on, brought the car to a halt, got out and walked away. The appellant shouted abuse at Mr Alam and, as he crossed the road, the appellant drove straight at him. Mr Alam was knocked up in the air, over the top of the car, and fell to the ground on the road. The appellant then performed a U-turn in his car and, as Mr Alam lay helpless on the ground, the appellant drove back and ran over him again. Following the collision, the appellant distanced himself from the event; he drove away and abandoned the vehicle on an industrial estate. He then retrieved the vehicle and abandoned it again on a side street in Dudley. On 28 th April 2021 he surrendered himself to the police. He made no comment when he was interviewed. As a result, Mr Alam sustained a fracture to the left side of the pelvis which involved the left hip socket. The fracture was undisplaced. The medical evidence showed that it was an injury which required some rehabilitation, but no further surgical intervention. Mr Alam was admitted to hospital on 24 th April, the day of the incident, transferred to the Queen Elizabeth Hospital the following morning, where he was treated non-operatively. He was discharged on 28 th April. Thereafter, he was seen in follow-up appointments in the out-patient clinic in June, July and October 2021, when he was finally discharged with no further follow-up. The Judge's Sentencing Remarks After setting out the facts, the judge in his sentencing remarks referred to the fact that in relation to the running over, the appellant had pleaded guilty to causing grievous bodily harm with intent, but had denied intent to kill, which was the issue for the jury. After describing the injuries as we have described them, the judge said: "… although the fracture could be dealt with without surgical intervention, it was a serious injury." He added that it was a matter of good fortune that Mr Alam was not more seriously injured or even killed, although he went on to observe that he sentenced him on the basis of what had in fact happened. The judge observed that Mr Alam had suffered significant emotional and psychological distress, as was clear from his Victim Personal Statement. The judge then turned to the sentencing guidelines for attempted murder. Culpability was not in dispute and fell within category C. He then turned to the question of whether or not the harm fell within category 2 or category 3. The question was whether or not it fell within category 2. After setting out the wording of category 2, the judge said that the question was whether or not in this case there was "serious physical harm". He recited counsel's submission on behalf of the appellant that although there was serious injury, it did not amount to serious physical harm within the guidelines. The judge then continued as follows: "In my judgment that is not the proper approach to take to categorisation. I am required to consider the wording of the Sentencing Council guidelines and interpret the wording in using the ordinary terms that are used. In particular, the term that is used here is 'serious physical harm'. In my judgment so far as the injuries that were caused in this particular case is concerned, it amounts to serious physical harm." The judge went on to add: "… I am supported in that conclusion because you pleaded guilty to causing grievous bodily harm with intent, and indeed pleaded guilty to that at an early stage in these proceedings. Grievous bodily harm might otherwise be described as really serious bodily injury. In my judgment that is analogous to serious physical harm; indeed, it amounts to precisely the same thing in my judgment. You have admitted therefore that you caused serious physical harm to Mr Saeed Alam, and in my judgment, on the facts of this case, looking at the injuries that have been caused, there can be no doubt but that this case falls within category 2." The judge then identified the starting point for a category C2 offence as being 20 years' imprisonment, and applied that as his starting point for the offence on count 1. He considered that aggravating factors arose from previous convictions for offences of violence or threatening violence. But taking account of the significant period of time which had elapsed since those convictions, they were not a particularly significant aggravating factor. He went on to identify two further aggravating factors: first, the appellant's violence or abuse towards the victim, Mr Alam; and secondly, the fact that the appellant had sought to hide the car after the event. As regards mitigating factors, the judge identified the most important one as being the appellant's age and the fact that he had not been in trouble for many years. He pointed out that the appellant is a family man with a good work history. The judge then went on to state that he intended to arrive at an overall sentence in relation to count 1 in which he would aggregate the sentences on the other counts and would impose a sentence on count 1 which reflected the overall offending. He went on to consider counts 3, 4 and 5 and pointed out that in respect of each the appellant was entitled to a 25 per cent reduction to reflect his guilty plea. Finally, having considered all the sentencing guidelines relevant to the offences, he indicated that he had also taken into account the guidelines in relation to totality. The judge went on to consider the question of dangerousness, but concluded that there was no need for him to impose either a life sentence or an extended sentence. He then imposed the sentences as we have previously indicated. The appellant has three previous convictions for three offences: affray in August 2002, for which he received community punishment; and two offences of assault occasioning actual bodily harm in 2007, for each of which he was sentenced to eight months' imprisonment. The Grounds of Appeal The appellant appeals against the sentence imposed in respect of count 1. He contends as follows: (1) that the harm caused did not fall into category 2 of the relevant Sentencing Guidelines; alternatively, (2) that if the harm did fall within category 2, it should have been at the lower end of the range; and (3) that, regardless of categorisation, the harm was not sufficiently severe to warrant an overall sentence of 21 years' imprisonment. For those reasons it is contended that the sentence was manifestly excessive. In the grounds of appeal and in oral argument before us today, Ms Bache, who appeared for the appellant, submits as follows. As regards the injury to Mr Alam, she relies upon the statement of the consultant orthopaedic surgeon who had been treating Mr Alam. That statement referred to the fact that Mr Alam had gone back to work and that that was at odds with the Victim Personal Statement of Mr Alam in which he had said that he had been unable to work at all. It is submitted that the Victim Personal Statement of Mr Alam should have carried little weight. As regards the first contention, the appellant asserts that the test remains whether the harm is serious in the overall context of the offence. It is submitted that the fact that an injury may cross the legal threshold to be categorised as grievous bodily harm does not necessarily preclude it from being categorised as category 3 harm in the guidelines; the guidelines do not say that all cases of grievous bodily harm necessarily fall within category 2; and in this case the harm was not really serious physical harm. As regards the second contention, the appellant relies upon the Court of Appeal's judgment in R v Deniz [2022] EWCA Crim 1817 at [31], which suggests that in a case where the injuries have largely resolved, it is appropriate to take a starting point lower within the C2 range than the 20 year starting point. The appellant points to the fact that if, in the present case, the jury had not found intent to kill and that he had been sentenced for section 18 causing grievous bodily harm with intent, then his case would have fallen within harm category 3 of the grievous bodily harm guidelines, with a starting point of four years' imprisonment. Whilst recognising the substantial difference between a conviction under section 18 and a conviction of attempted murder, nonetheless the effect of the finding of an intention to kill raised the starting point by a substantial amount, from four years to 20 years' imprisonment. Ms Bache refers to the difference in category C of the attempted murder guidelines between a case falling into category C2 and one falling into category C3; the difference in starting points is ten years, which is a "stark difference". Analysis The guidelines for attempted murder provide for three categories of harm as follows: " Category 1 Injury results in physical or psychological harm resulting in lifelong dependency on 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 Serious physical or psychological harm not in category 1 Category 3 All other cases" The question that arises on Ms Bache's first submission in the present case is whether or not the injury here fell into category 2, "serious physical harm not in category 1", or category 3, "all other cases". As regards Ms Bache's reference to the Sentencing Guidelines for causing grievous bodily harm with intent, we do not consider that those guidelines are relevant to the present case. The appellant fell to be sentenced for attempted murder, not for a section 18 offence. We note in passing that category 3 in the attempted murder guidelines reflects the fact that the offence of attempted murder can be committed without any harm being caused at all. Obviously, that cannot apply to the section 18 offence of causing grievous bodily harm with intent. Whilst there might be circumstances in which a distinction could be drawn between an injury which amounts to grievous bodily harm for the purposes of section 18, and an injury which is serious physical harm within category 2 of the attempted murder guidelines, we find it difficult to envisage such circumstances. In any event, in this case we conclude that the learned judge was correct to place the injury in this case in category 2 harm, and for the reasons he gave. In our judgment, there is no basis for finding that the harm in the present case was not "serious physical harm". As regards the appellant's second submission - that in view of the nature of the injuries the judge should have reduced the starting point for count 1 - we consider that, even assuming that were to be correct, the overall sentence imposed for all four offences of 21 years' imprisonment was not manifestly excessive. We do consider that the judge might properly have reduced the starting point from 20 years, to take account of the fact that the injuries sustained by Mr Alam were not, in light of his full recovery, at the most serious end of the range of harm covered by category 2. Nevertheless, and in any event, there were two factors which justified an increase from the starting point. First, the aggravating factors outlined by the judge outweighed the mitigating factors. Of the factors listed in the sentencing guidelines for attempted murder, the judge identified three of the aggravating factors and only one of the mitigating factors. Secondly, and importantly, the sentences for the offences on count 3 and count 4, where there was a separate and different victim, namely Ms Hassan, could quite properly have been imposed to run consecutively. The judge chose to impose those sentences concurrently, and therefore properly to increase the sentence on count 1 to reflect that fact. This also warranted an increase in the sentence on count 1. Taking account of these features, we are satisfied that the overall sentence imposed on count 1 of 21 years' imprisonment was fair and appropriate; it was not manifestly excessive. For these reasons this appeal is dismissed. __________________________________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII