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Barnard charged with ABH!

Matthew Le God

By Matthew Le God,
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Alain Perrin

Alain Perrin

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Assault occasioning Actual Bodily Harm

Date Produced: 31 March 2010

 

Title: Offences against the Person

 

Offence: Assault occasioning Actual Bodily Harm

 

Legislation: Offences against the Person Act 1861 section 47

 

Mode of Trial: Either way

 

Statutory Limitations & Maximum Penalty: 5 years imprisoment

 

Sentencing Range: Specified violent offence

 

Relevant Sentencing Guidelines

The SGC definitive guideline 'Assault and Other Offences Against the Person" applies to offenders sentenced on of after 3 March 2008.

 

Seriousness, culpability and harm

The primary factor is the seriousness of the offence committed; that is determined by assessing the culpability of the offender and the harm caused, intended or reasonably foreseeable. Consider the SGC guideline 'Overarching Principles: Seriousness' for general factors when assessing seriousness, culpability and harm. The SGC Assaults guideline states (at para. 22) that use of a weapon or part of the body such as the head usually increases seriousness, and (at para.23) that relative seriousness is based on whether the assault was pre-meditated or spontaneous and on the degree of harm that resulted.

 

Aggravating and Mitigating Factors

The most common factors likely to aggravate assaults are:

 

planning of an offence;

offenders operating in groups or gangs;

deliberate targeting of vulnerable victim(s);

offence committed against those working in the public sector or providing a service to the public;

use of a weapon to frighten or injure victim;

a sustained assault or repeated assaults on the same victim;

circumstances such as isolated location, taking advantage of poor lighting, vulnerability of victim

The most common mitigating factor is:

 

provocation

unintended injury

SGC Guidelines

The guidelines set out below apply to a first time adult offender who has been convicted after a trial, and on the basis that he/she has not been assessed as dangerous.

 

Pre-meditated assault EITHER resulting in injuries just falling short of GBH OR involving use of a weapon: Starting Point: 30 months custody, Sentencing Range: 2-4 years custody

 

Pre-meditated assault resulting in relatively serious injury: Starting Point: 12 months custody, Sentencing Range: 36 weeks-2 years custody

 

Pre-meditated assault resulting in minor, non-permanent injury; Starting Point: 24 weeks custody, Sentencing Range: 12-36 weeks custody

 

Other assault resulting in minor, non-permanent injury: Starting Point: Community Order (HIGH), Sentencing Range: Community Order (MEDIUM) - 26 weeks custody

 

If the offence was committed in a domestic context, consider the SGC guideline 'Overarching Principles: Domestic Violence' (see Archbold at K-82)

 

If the victim is a child, consider the SGC guideline 'Overarching Principles: Assaults on children and Cruelty to a child'.

 

R v McGillivray and R v Kentsch (see CSP at B 2-4.2) confirm that it is inappropriate to sentence on a basis of racial aggravation if the offender is due to be sentenced for only a non-racially aggravated offence.

 

Cases involving sentence and/or appeal hearing after issue of the SGC definitive guideline

More serious offences towards the top and less serious offences towards the bottom

 

Ravenhill [2009] 2 Cr.App.R.(S.) 19

Appellant was a serving prisoner who assaulted a prison officer. Whilst he was being restrained, the victim fell to the floor trapping his leg and the appellant kicked him in the face. Dislocated ankle, broken leg, bleeding nose, bruising and swelling under the eye; two operations. Guilty pleas to two counts, bad record. The Court of Appeal observed that the SGC definitive guideline applies to first-time offenders and so is of limited assistance; sentencing range has to be increased significantly for assaults upon a prison officer. Sentence reduced to two years concurrent on both counts.

 

Emms [2008] EWCA Crim 967

Domestic violence with a history of violence against victim by appellant. Two ABH counts. Count 1 - argument during which the appellant accused victim of having had an affair with his brother. He abused her, grabbed her by the face, put his hands around her neck and squeezed. Swollen and bruised eye.Count 2 - argument the next evening. Grabbed, punched her face, head and body, caused her head to hit a wall and then a table, grabbed her hair, punched, threatened, continued punching and slapped her. Bruising to her back, arms, legs, cheek, left shin and left foot, swollen mouth. SGC definitive guidelines considered. Guilty pleas on day of trial. Lengthy CRO, including violence. On count 1 six months imprisonment and on count 2 - 18 months consecutive. Appeal dismissed.

 

Parker [2010] 1 Cr.App.R (S) 32

The appellant and victim were partners. Having both consumed alcohol, in the early hours the appellant asked her whether she had been cheating on him. She denied that. An arguement began and eventually the appellant grabbed the victim, swung her round, called her a "slag" and punched her in the face knocking her to the ground. The appellant continued to assault her while she was on the ground, repeatedly punching her in the face. The appellant stopped and the victim phoned a relative who came to collect her. The appellant punched her again and continued shouting at her. Two black eyes and other injuries. Late guilty plea. Sentence of two years imprisonment upheld.

 

Abbas [2010] 1 Cr.App.R (S) 47

The appellant barged into a group standing outside a bar. He punched the victim hard in the face, knocking him to the ground and rendering him unconscious as his head hit the pavement. Cuts and bruises to head and one eye. Convicted. The Court regarded it as a case of a drunken over-reaction to events, not premeditated violence. Offence committed whilst on bail. Setence reduced to 15 months imprisonment.

 

R v Pavia [2009] EWCA Crim 1858

The appellant threw a pint glass from close range straight into the face of a former girlfriend in a club. She had asked him not to atttend the club but he had ignored her. She suffered a cut of slightly less than two inches long just below her eye. Convinced after trial. Victim no longer able to undertake modelling work because of the scar. Appellant aged 31 with previous convictions for violence. Sentence of 15 months imprisonment upheld.

 

Morgan [2009] EWCA Crim 659

Domestic violence.Appellant aged 24 and female victim aged 18. Argument in their home, because the appellant thought that she had slept with his brother. Words exchanged, he punched her once, she went to her parents. She returned, the quarrel resumed, he pushed her to the ground, kicked her (not wearing shoes) more than once and punched her to her face before and whilst sitting astride her. Bruising to face and forehead, bruising and swelling to her right arm.Victim made a statement saying that they were reconciled. Guilty plea. One previous conviction for police obstruction. Sentencing judge did not refer to the SGC sentencing guidelines, so not known why he chose a sentence significantly above the suggested guideline. Court did not consider it easy to categorise the offence in terms of an appropriate guideline. Sentence reduced to ten months imprisonment.

 

Nawaz [2008] EWCA Crim 1454

Assault outside nightclub. Altercation including slapping. Victim dragged across the road, floored, kicked and punched by five offenders. Blows to the head and to body.Injuries included a broken nose, grazing and bruising. Guilty pleas. Antecedents varied, the lightest probably being two convictions for possession of cannabis. The Recorder observed that the defendants should regard the sentences of six months imprisonment as relatively lenient. SGC definitive guidelines considered. Held not premeditated, serious aggravating features were ferocious group attack lasting for 10 or 15 seconds and use of a shod foot, broken nose not a minor injury. Court observed that it is necessary to be especially careful not to become fixated on one aspect of the language found in each of the categories set out in the table. Appeals dismissed.

 

McDonald [2008] EWCA Crim 1499

Victim walking home just before 2 am. Guilty plea and committed for sentence in respect of an offence of assault occasioning actual bodily harm. Two main offenders knocked victim to the ground, kicked and punched him. Severe swelling to the right eye and some broken teeth. The appellant's involvement was limited to kicking out once whilst the victim was on the ground; he told the police that he only flicked him and not to cause injury. The two main offenders both received two year sentences. Appellants sentence of 15 months imprisonment reduced to six months.

 

Recent Decisions reported in CSP at B 2-4.3 divided into: assaults on bus conductors and other persons exposed of violence by reason of their position; unprovoked assaults; in course of football matches etc.; on motorists; on spouses; stalking; other cases. See CSP B2-6 for assaults on police officers.

 

Ancillary Orders

 

Compensation

Exclusion Order

Drinking banning order

Anti-social behaviour order

Football banning order

Top of page

 

Return to Sentencing Manual Index

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saintscottofthenortham

saintscottofthenortham

Posted
Posted
I notice two of the guys involved (one charged one not) are from Billericay Essex which is about 16 miles from Southend. I wonder if thats what kicked it off disgruntled Southend fans?

 

It was on the night of the Bompey game. Barnard is an Essex lad so take it as it's friends from there.

 

Either way, he is going to be looking at serving a year (that being on good behaviour) if the initial reports that a weapon (bottle) was used. I know he done damage to the ligaments in his own hand, so I imagine that whoever was on the other end come off bad too. So that is going to further the sentence more.

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MacFad2207

MacFad2207

Posted
Posted

IF he as no previous, reckon he should get off with a fine and community service. Would be fairly harsh to send someone down if it was their first offence. However the CPS may look to make an example of him as he is a role model etc. If he did a lot of damage to the guy, surprised he is not being done for GBH.

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buctootim

buctootim

Posted
Posted (edited)

http://www.marymonson.co.uk/GBH-ABH-Assaults.php

 

From this link it appears ABH is for relatively minor injuries to the victim, scratches and bruises, not major cuts.

 

Will there be a prison sentence?

ABH carries a maximum sentence of five years.

 

As with common assault, if someone is being charged for the first time it is unlikely that they will go to prison with a fine the usual outcome. Again, if the offender has previous convictions or if they were proven to have had a particular motivation for the attack, specifically if it is racially motivated this could however lead to a prison sentence.

 

http://www.inbrief.co.uk/offences/assualt-gbh-abh.htm

Edited by buctootim
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musesaint

musesaint

Posted
Posted

ABH is a much less serious offence than GBH

 

Barnard has an unbelimished previous record (don't ask me how I know but I do) - so that counts in his favour even if he is convicted after a not guilty plea or pleads guilty to start with

 

This is serious - but I don't think anyone needs to panic toooooooooooooooo much yet

 

It would have been far more serious had it been GBH

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JRM

JRM

Posted
Posted

I would say it is highly unlikely to get custodial for ABH as a first time offender.

If he was to plead guilty, and in mitigation argue provocation and in this case the "victim" is clearly not classed as "targeting a vulnerable individual" as i understand he was a cage fighter, then i would say a hefty fine, some community service, or perhaps even a suspended sentence.

 

Lets hope so anyway. Top player and I want him in the side.

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bangkoksaint

bangkoksaint

Posted
Posted
http://www.marymonson.co.uk/GBH-ABH-Assaults.php

 

From this link it appears ABH is for relatively minor injuries to the victim, scratches and bruises, not major cuts.

 

Will there be a prison sentence?

ABH carries a maximum sentence of five years.

 

As with common assault, if someone is being charged for the first time it is unlikely that they will go to prison with a fine the usual outcome. Again, if the offender has previous convictions or if they were proven to have had a particular motivation for the attack, specifically if it is racially motivated this could however lead to a prison sentence.

 

http://www.inbrief.co.uk/offences/assualt-gbh-abh.htm

 

ABH which is S47 is not that minor, though less serious than S18 or S20. If it was just a few bruises etc it would be mre likely S39.

 

If he has been charged then more than likely guilty. You never see a not guilty man convicted but you do see plenty of miscarriages of justice..............................ie plenty of guilty men acquitted

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Danish Saint

Danish Saint

Posted
Posted

As with common assault, if someone is being charged for the first time it is unlikely that they will go to prison with a fine the usual outcome. Again, if the offender has previous convictions or if they were proven to have had a particular motivation for the attack, specifically if it is racially motivated this could however lead to a prison sentence.

 

So Barnard could be looking at either:

 

Pre-meditated assault resulting in minor, non-permanent injury; Starting Point: 24 weeks custody, Sentencing Range: 12-36 weeks custody

 

or

 

Other assault resulting in minor, non-permanent injury: Starting Point: Community Order (HIGH), Sentencing Range: Community Order (MEDIUM) - 26 weeks custody

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Born In The 80s

Born In The 80s

Posted
Posted

Now i admit i was there, but judging from what the bar staff at whitehouse, people on here who were there and people on here who had friends there or around the area have said about the incident, i'm very surprised Barnard is ONLY looking at ABH. As someone else has pointed out on this thread, when a weapon such as a bottle is used, the charge is usually GBH. I'm now more confident Barnard will avoid a jail sentence. I'd say he gets community service and a big fine.

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NickG

NickG

Posted
Posted
My understanding is if there had been a weapon such as a bottle involved it would more likely be the more serious GBH.

I think he would be unlucky to serve a sentence if he has a clean record but you can never tell.

 

no, can be abh with weapon

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Smirking_Saint

Smirking_Saint

Posted
Posted

I wondered why Barnard was getting less of a look in as of late, i reckon saints may have had a bit of a heads up and understood the possibility that Barnard may have been going down.

 

I'll be honest, if he didn't play for Saints i would be commenting on the fact he could be going down, i feel a little uneasy that this is all going on with one of our players. Hopefully it was all to do with self defence.

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Turkish

Turkish

Posted
Posted (edited)
Would be extremely unlikely to get custodial for ABH unless Barnards got previous.

 

There are two things to bear in mind. If they want to make it a deterant sentance then being of previous good character matter not one bit. Judges can dish out what they want up to the maximum if they are using it as a deterant sentance and want to make an example.

 

The other thing is current government thinking and from inside the prison service (a very good friend of mine works in a fairly senior role for the HMP) is that if it is a first offence and the sentance would usually be less than a year then they are not being banged up and given heavy community service and fines etc

 

So basically either he will get lucky and get a suspended sentance, heave fine or community service or he is f*cked and will be made an example of and be given a tough sentance of year plus, he wont get 6 months IMO. Given that he will be able to afford his own brief and not have to rely on the sh*t, couldn't give a toss, legal aid barristers your man on the street has to put up with, then he'll have a barrister which will argue his case rather than just turn up so it appears like he's got a defence, then i think he'll be a lucky boy. All assume is indeed guilty of course.

Edited by Turkish
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