Assault occasioning Actual Bodily Harm is a very serious offence that is viewed more seriously if unprovoked. The fact that the unprovoked attack was towards a police officer, let alone two, makes this very severe indeed. The attack was unprovoked as the police officers were merely doing their job. Whilst Police Officers may have justifiable reasons to be more wary or in harms way than a lecturer or accountant, it is by no means excusable to attack an Officer once you have broken the law and are being arrested. The police would not have expected such a violent attack when arresting someone for his behaviour and the fact both Officers needed medical attention is a testament to the ferocity of the defendants’ unlawful behaviour.
From the time the defendant had first made contact through the car window to the moment he was arrested, he participated in a number of aggravating features.
The time is a factor because being at around 1 a.m. Mr. Smith is almost asking for trouble as this is within prime car crime hours. This would make the police especially wary of such behaviour as portrayed by Mr. Smith. The fact that he then makes obscene gestures towards the police will only heighten the risk of aggravating them into action. He then decided to lure the police into a car chase as a means of escaping arrest and even when he abandoned the vehicle, he continued to evade the police officers. When he finally came into contact with the Officers, he turned violent and began to wrestle with them. Mr. Smith then managed to injure and leave markings on both officers before being restrained. Even when handcuffed, a third officer had to stop him lashing out. Both Officers needed medical attention once back at the station. This begs the question that if the defendant can do this to police officers, what could he do to an innocent and off-guard member of the public?
In the police interview, the Defendant admitted he had no driving license. He also stated he was the driver of a vehicle involved in a police chase and admitted to biting the police officer on the hand. He cannot remember the struggle but acknowledges that the officers may have been injured.
In his statement, Mr. Smith pleads guilty to both charges and says he voluntarily participates in dangerous situations. He freely admits he can lose control of himself.
His previous convictions include Assault occasioning Actual Bodily Harm, Theft, Obtaining property by deception, Criminal damage and failing to surrender bail. He also has numerous driving convictions. His previous Actual Bodily Harm Offence highlighted his violent side when he punched a neighbour in the face. In the eyes of the prosecution, this shows that as a repeat offender he must move up the sentencing hierarchy.
.
- Mitigating Circumstances:
I shall begin as before by looking at the circumstances, then the character and situation of the Defendant.
Mr. Smith pleaded guilty to all offences levelled at him, but the punishment dealt seems to outweigh the actions. The struggle with the officers was unsavoury but by no means a pre-meditated attack on another person. As said in the interview, Mr. Smith was purely defending himself as he was pushed to the ground. Mr. Smith was not trying to injure the police officers, but merely escape to carry on the chase.
Dr. Hood inspected the police officers an hour later and whilst recognising breaks in the skin, said the injuries were of a superficial nature and of mild force. No further treatment was necessary and this is reinforced by the fact that it took ten minutes to clear both Officers.
Mr. Smith deserves an amount of credit for pleading guilty to the attacks and has said that even though he can’t recall specifically what happened, he is sorry for the attack on them. He accepts what he did was wrong and knows he should not have raced with the police or initiate a chase on foot. He admits to losing control of himself and is prepared to see someone in order to gain some responsibility. This ‘chase’ was the only thing wrong, as the defendant owned the car and was involved in no type of car crime, showing his previous punishments for crimes such as theft have worked. These previous punishments involve a conditional discharge and fines and costs.
David Smith has just acquired a job after a long period of unemployment. This shows determination and a willingness to persevere at tasks and can only be looked upon as positive in light of any counselling he may receive. He is not the type of character to give up easily and counselling could be of great benefit. Mr. Smith has a settled family of a wife and four children and has just got the job that could stabilise him, the final piece of the jigsaw in terms of leading a responsible law abiding life with a job and family.
Mr. Smith must be punished for assaulting two police officers as it is recognised as a serious offence and is in the public’s interest. However it is in his, and his families interest, that he is given a chance to handle the responsibility he craves and seems to have attained with this job. It is suggested that a Community Rehabilitation Order for two years is imposed, and he attends appropriate counselling in order to curb his ‘thrill from dangerous situations.’ Had Mr. Smith assaulted another member of the public, an eighteen month Community Rehabilitation Order would be sufficient, but due to assaulting Police Officers, two years is acceptable.
- Sentencing:
The maximum available penalty for Assault occasioning Actual Bodily Harm (section 47, Offences against the persons Act 1861) is 5 years imprisonment. Obviously it is not a standardised rule that this is given, and it is important to look at cases and relevant authorities in order to ascertain a correct and just punishment for Mr. Smith.
While assaulting a constable in the execution of duty (Police Act 1996) is a serious offence and involves a term of up to six months imprisonment, this is not the charge levelled at the defendant.
Emmins on Sentencing considers the acts that aggravate and mitigate a Section 47 assault, such as the one the defendant is being tried under. The aggravating features that are relevant in Emmins is the fact that the attack was on a public servant, the police officers, and the need to conider previous convictions. It can be argued that of the mitigating features in Emmins, ‘impulse’ is a possibility as Mr. Smith was trying to evade capture and carry on the chase, not hurt the police officers. This however is very weak and quashed by the aggravating features in Emmins.
The case of R v Crimes (1983) bears a number of resemblances to that of David Smith. The defendant has pleaded guilty to assault occaisioning Actual Bodily Harm on a police officer. The defendant had been seen by a police officer and a chase ensued. The defendant then ran on foot until accosted and harmed the police officer whilst struggling. Lord Justice Drake noted ‘This court would observe that this is not one of those cases which falls for consideration under that principle because this is a case of violence used upon a police constable in the course of his duty, when he was wearing a uniform and driving a police car.’ The defendant was sentenced to six months imprisonment for assault. This would suggest that Mr. Smith is heading for a custodial sentence.
In the case of R v McKenlay (1979) the judge stated that an attack on a police officer is always wrong in principle and the defendant (a man of good character) was also given six months in prison for punching and butting an officer.
One case which does support Mr. Smith is that of R v Aguilar (1985) where part of a six month sentence was suspended due to the defendant having a job and excellent background, with employers willing to take him back. This will aid Mr. Smith due to the fact he has just found a job after a long period out of work, and although not too similar to R v Aguilar (1985), the employment aspect of suspending a sentence may aid Mr. Smith.
The cases above offer guidelines in terms of how Mr. Smith should be dealt with, and the last thing left to consider is his previous sentences and character. Although Mr. Smith has found a job and seems to recognise his problems with responsibility, the punishments of his previous crimes have never really deterred him from re-offending in one way or another, be it the same crime or a new one. His previous conviction for assault occasioning Actual Bodily Harm shows a violent streak and no end of compensations and fines to be paid out have resulted in a halt of such activities.
It is obvious that the cases above have all imposed a custodial sentence in light of a section 47 assault on a police officer and Mr. Smith shall be no different. In respect of precedent and with the consideration of all aggravating, mitigating and case law factors, and the totality principle of Mr. Smith having two charges of assault occasioning Actual Bodily Harm, I believe it suitable that Mr. Smith receive a custodial sentence of 6-12 months
Word Count: 1,986
