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Grounds for an appeal?
In November of last year my boyfriend, in short, got drunk and broke a guy's leg by kicking.
There are no witnesses that saw the whole incident, and, in my opinion there is some confusion as to how the victim's leg got broken. When he was first taken to hospital he told the doctor that his friends had pushed him forward and hurt his leg. The next day he told the doctor he was kicked by my boyfriend. The victim, for personal reasons, did not come to the trial, nor did he have a statement read. The 3 witnesses that came to the trial only saw the end of the incident where my bf was kicking the guy who was down on the ground.
My bf was very drunk at the time and claimed he was an FBI agent and the person he was kicking was a very dangerous Russian spy. Obviously that wasn't true.
My bf does not remember a thing at all about the incident, not how it started, not even the actual event (so if he was that drunk could he really form intent?).
He was willing to plead guilty to a S20 but was charged with, and found guilty of S18. He was sentenced to 'the lightest sentence' the judge could give of 3 and a half years.
My bf is 30 and aside from a drink driving charge this is the only charge he has ever had. He was out on bail for the 10 months before the trial took place and did not have any trouble. The events of this night are totally out of character for him.
Can I have some opinions, based on knowledge, on whether or not the crime fits the charge and sentence? (I'm really not interested in any other comments thanks norman)
There are no witnesses that saw the whole incident, and, in my opinion there is some confusion as to how the victim's leg got broken. When he was first taken to hospital he told the doctor that his friends had pushed him forward and hurt his leg. The next day he told the doctor he was kicked by my boyfriend. The victim, for personal reasons, did not come to the trial, nor did he have a statement read. The 3 witnesses that came to the trial only saw the end of the incident where my bf was kicking the guy who was down on the ground.
My bf was very drunk at the time and claimed he was an FBI agent and the person he was kicking was a very dangerous Russian spy. Obviously that wasn't true.
My bf does not remember a thing at all about the incident, not how it started, not even the actual event (so if he was that drunk could he really form intent?).
He was willing to plead guilty to a S20 but was charged with, and found guilty of S18. He was sentenced to 'the lightest sentence' the judge could give of 3 and a half years.
My bf is 30 and aside from a drink driving charge this is the only charge he has ever had. He was out on bail for the 10 months before the trial took place and did not have any trouble. The events of this night are totally out of character for him.
Can I have some opinions, based on knowledge, on whether or not the crime fits the charge and sentence? (I'm really not interested in any other comments thanks norman)
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It is extremely difficult to charge and run with a Sec 20 let alone a sec 18, The Police must have a strong enough case against your Boyfriend or the CPS would not of run with it. What other injuries to the victim receive?
Without a witness being able to state the truth about what happened and what caused the fight it will impossible to prove that your bf didn't have intent as a witness statement saying he was kicking the guy on the ground only gives more fuel to the fire that your bf was assaulting a man who couldn't defend himself.
Sorry for sounding harsh but the reality of it sounds as if your boyfriend has committed the offence and has no defence!
Without a witness being able to state the truth about what happened and what caused the fight it will impossible to prove that your bf didn't have intent as a witness statement saying he was kicking the guy on the ground only gives more fuel to the fire that your bf was assaulting a man who couldn't defend himself.
Sorry for sounding harsh but the reality of it sounds as if your boyfriend has committed the offence and has no defence!
These are the sentensing guidelines:
http://www.sentencing-guidelines.gov.uk/docs/V ersion%20for%20publication%202007-02-16.LD.pdf
4. In addition to showing that the offence resulted in grievous bodily harm, the prosecution must prove that the offender had a specific intent to cause that level of harm. The CPS suggests that factors which may indicate a specific intent include:
�� a repeated or planned attack;
�� deliberate selection of a weapon or adaptation of an article to cause
such as breaking a glass before an attack;
�� making prior threats;
�� using an offensive weapon against, or kicking, the victim's head.
Doesn't sound all that relevant but I'm not an expert.
The summary
http://www.sentencing-guidelines.gov.uk/docs/V ersion%20for%20publication%202007-02-16.LD.pdf
4. In addition to showing that the offence resulted in grievous bodily harm, the prosecution must prove that the offender had a specific intent to cause that level of harm. The CPS suggests that factors which may indicate a specific intent include:
�� a repeated or planned attack;
�� deliberate selection of a weapon or adaptation of an article to cause
such as breaking a glass before an attack;
�� making prior threats;
�� using an offensive weapon against, or kicking, the victim's head.
Doesn't sound all that relevant but I'm not an expert.
The summary
Sorry, the summary page suggests that a non-custodial sentence would always be inappropriate for and offence including stamping on someones head - now I not that wasn't the case here but other statistics I've seen have shown that any case where a non-custodial sentence was passed on any S18 GBH has resulted in a sucessful appeal by the prosecution.
As to whether 3 years is the minimum, I'm not so sure about that
Hopefully you'll find those guidelines useful
As to whether 3 years is the minimum, I'm not so sure about that
Hopefully you'll find those guidelines useful
To answer your question leela, the victim sustained no other injuries. All 3 witnesses stated that they did not see my bf kicking any other part of the body. They saw no more than 3 or 4 kicks. My bf was wearing loafers at the time.
The police took almost an hour to arrive at the scene, during which time my bf just sat on the ground. He made no attempt to disguise himself or flee from the scene.
What I'm failing to understand is why he got convicted of a S18 when people who commit assault, with the victim sustaining far worse injuries, get charged with less.
The police took almost an hour to arrive at the scene, during which time my bf just sat on the ground. He made no attempt to disguise himself or flee from the scene.
What I'm failing to understand is why he got convicted of a S18 when people who commit assault, with the victim sustaining far worse injuries, get charged with less.
thanks seatrout. i have told you the story as i heard it at court as i wasnt with him at the time of the incident. like i said, the victim did not come to court or have a statement read. the case was pretty much solely built around what the 3 witnesses saw and the reports from the hospital. yes, i know that sounds weird, but that's the way it goes!!
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