ABH (again)

[hflynn]

I recieved an answer to my previous question and would like to say thanks (buenchico), also i recieved some info telling me that the law has changed and it is allowed in crown court for any previous convictions in relation to the current allegation to be announced. Also the trial has already been transfeered to the crown court and the accussed is not willing to change his plea as he is addament he was self defending. the biggest problem i can see is that the 'victim' is 17 years of age and the defendant is 22 years of age, the defendant was also drunk at the time, but was not charged with drunk and disorderly so can they pull that up in the court room? so as you can see the odds are against him and i would like to know the most probable outcome, a fine, community service, or the worst, custodial????
Many thanks. xx :) xx

[jake-the-peg]

In the link that buenchico referred to in the last answer I gave the sentence lengths for ABH for 2003.

The minimum was 2 weeks, the average 9.2 months and the maximum was 5 years

The guidance to magistrates is that the following make the case more serious:

Abuse of trust (domestic setting)
Deliberate kicking or biting
Extensive injuries (may be psychological)
Headbutting
Group action
Offender in position of authority
On hospital/medical or school premises
Premeditated
Victim particularly vulnerable
Victim serving the public
Weapon

and these make it less so:

Minor injury
Provocation
Single blow


Neither of these lists is complete and other factors can be taken into account.

As Chris said the previous case of assault should not have any account on whether he is found guilty or not but will have a bearing on the sentence.

This is from a consultative paper on domestic violence The Court of Appeal in Liddle and Hayes32 provided guidance on sentencing levels. It was said that a short custodial sentence might be appropriate for a first offence although the court would need to consider �repetition and breach of orders and the nature of the misconduct�. For a second offence, a starting point of 15 months (on a plea of guilty) was suggested.

You know the circumstances better than we do but if the first offence was relatively recent. I'd hazard a guess at a sentence of something like a year

[Buenchico]

(Multi-part post):

A court can admit evidence of a defendant's 'bad character' (including previous convictions) where it appears to show that "the defendant has a propensity to commit offences of the kind with which he is charged". But the evidence may not be admitted when "having such a propensity makes it no more likely that he is guilty of the offence". It would be up to the judge to decide whether or not the previous conviction indicates a propensity to violence and, if so, whether that propensity makes it more likely that he is guilty. It's possible that the judge might rule that a single conviction, for a relatively minor offence, does not provide grounds for admitting evidence of bad character.
http://www.opsi.gov.uk/acts/acts2003/30044--l. htm

[Buenchico]

'Self defence' won't stand up in law if there is evidence that the defendant used more than the minimum amount of force required to ensure his own safety. For instance, if someone throws a punch at you and the only way that you can prevent him from throwing another one is to punch him back, that probably counts as 'self defence'. However, if that returned punch knocks your assailant to the ground, you must immediately cease punching or kicking him. (i.e. you've given yourself enough 'breathing space' to run away, and that's what you must do). A second blow from you constitutes assault. If there is any evidence to show that the defendant's actions were 'excessive' he would be well advised to change his plea to 'guilty' and to seek to use 'provocation' as a mitigating circumstance to reduce the sentence imposed by the court.

It's theoretically possible that a 'drunk and disorderly' charge could be added at a later date but, in practice, it's extremely unlikely that the CPS would bother adding such a minor charge when a far more serious one is already to be heard before the court. However, that doesn't prevent the CPS from bringing evidence before the court to show that the defendant was drunk.

You haven't stated why the case has been transferred to the Crown Court. This might, of course, simply be because the defendant has elected a jury trial. However, if the case was referred to the Crown Court by the magistrates, this indicates that the magistrates are of the view that, if the defendant is convicted, their sentencing powers are insufficient. (i.e. they believe that a custodial sentence, exceeding 6 months, might be appropriate). It should be remembered, though, that the magistrates had not heard the full case. (For example, they would be unaware of any element of provocation involved). So it doesn't automatically follow that a lengthy custodial sentence would follow.

[Buenchico]

We still don't know the full details of the case, so it's difficult to judge the level of sentence which might be imposed upon conviction. As I indicated in my previous post, I've done a bit of court reporting (and read many more court reports), so I've got a few reference points in my head but I don't claim to be giving expert opinion. However, for what it's worth, here goes:

If the assault was relatively minor, such as a single ('non-defensive') punch, the defendant might receive a non-custodial sentence. (e.g. 100 hours community service, plus a 3 year supervision order). Even at this level though, a short custodial sentence (of, say, 3 to 6 months) can't be fully ruled out.

If the assault was of a more sustained nature, a sentence of 12 to 18 months imprisonment might be more likely.

If the assault involved kicks to the victims head or body or the use of a knife or other weapon, a sentence of between 2 and 4 years imprisonment might result.

Chris