Ryan Kelly and Aiden Kendrick, both aged 19, recently pleaded guilty to s.47 assault occasioning actual bodily harm. They were sentenced on 14 May 2015 to 10 months’ detention in a young offender institution.
At a house party at Kelly’s home, the victim, a 16-year-old girl, fell asleep. Kelly then proceeded to shave the girl’s eyebrows. Shortly thereafter, Kendrick joined in and shaved off some of the girl’s hair.
The girl woke up to discover her head had been shaved at the front and side and that large chunks of hair from all over her head had been cut off with scissors.
The girl was “devastated” and her parents spent £2,400 in “remedial work” including hair weaving to limit the effect upon their daughter. The incident had further effects upon the girl however, as her school grades plummeted from As to Ds.
Is this really ABH?
We have a fact sheet on ABH here.
Archbold 2015 (the practitioner-text for criminal lawyers) states:
“Bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent, but must be more than merely transient or trifling: R. v. Donovan  2 K.B. 498, 25 Cr.App.R. 1. It may include the cutting off of a substantial part of a person’s hair: DPP v. Smith  2 Cr.App.R. 1.
The judge said:
“I have no doubt that the pair of you thought it was a big laugh to have done what you did to her, and that perhaps is the very best evidence of the sort of individuals that you are…People who had no respect for others, who do not care what their actions may have on others and are only interested in immediate gratification for themselves.”
He imposed sentences of 10 months’ detention in a young offender institution. He also imposed a 5-year restraining order but said he could not impose a compensation order as “neither are in work and do not have a penny piece”.
Considering the Assault Guidelines (see p.11), one could certainly argue that on a direct application of step one (where the court must consider culpability and harm) this was a greater harm and higher culpability offence due to the presence of the following factors:
Victim is particularly vulnerable because of personal circumstances
Sustained or repeated assault on the same victim
Deliberate targeting of vulnerable victim
That would make this offence a category 1 offence with a starting point of 18 months’ custody. To my mind, that would be a perverse result and one that, despite the harm caused to the victim, is manifestly excessive.
We’re unaware of whether or not the judge applied the guidelines and if so, what his view of how this case was to be applied to them, however it would appear that the judge was of a similar view, as a sentence of 10 months’ after a guilty plea is representative of a starting point of 15 months (assuming full credit for the plea).
That is still rather high considering that there was (we assume) no intention to cause harm and the “assault” was intended as a joke.
Will there be an appeal? It is possible, however the fact that the victim was so vulnerable and deliberately targeted may suggest that a stiff sentence was warranted in this case. To my mind, a suspended sentence would probably have sufficed.
As for the restraining order, the likelihood of a continuing risk of harassment is perhaps somewhat slim; this may not appear to be the typical sort of case in which a restraining order would be made, however, if the judge found there was a need to protect the victim, it is entirely understandable why such an order was imposed.
As for the compensation order, they are means-based and no purpose is served by imposing a financial order where there is no hope of it being paid. Had the paid been juveniles, there is a power to make the parents pay certain financial orders. In this case, unfortunately, that is not possible.