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Interpretation of category 1 factors for offences of causing GBH or wounding with intent – R v Xue [2020] EWCA Crim 587

This comment notes the recent Court of Appeal decision which focused upon the interpretation of two category 1 factors indicating greater harm under the Sentencing Guideline for causing GBH or wounding with intent under section 18 OAPA 1861 (‘section 18’):

  • Injury (which includes disease transmission and/or psychological harm) which is serious in the context of the offence (must normally be present);
  • Sustained or repeated assault on the same victim.

As practitioners are aware, under the guideline an offence only falls under category 1 where it can be shown that there was greater harm to the victim and higher culpability of the Defendant. The starting point for a category 1 offence is 12 years’ custody (with a range of 9 – 16 years’), whereas an offence under category 2 has a starting point of 6 years’ custody (range of 5 – 9 years’).

The Facts

The Defendant forced his way into the complainant’s home after he was earlier called an ‘idiot’. Following a struggle, he slashed at the complainant with a bladed weapon causing injuries to his face and left hip. The complainant had two lacerations to the left-hand side of his face and two to his hip, it appears all required suturing and left scarring.

The sentencing Judge considered that the offence fell within category 1 and, specifically in relation to harm, held that the injury was serious in the context of the offence and that there had been a sustained attack. The judge passed a sentence of 12 years’ imprisonment for this conviction (the Defendant was also convicted of s47 ABH OAPA 1861 – this was against a separate individual but was part of the same incident).

The Defendant appealed against the judge’s findings in relation to harm under category 1, however it was accepted that his culpability was within that category.

Injury which is serious in the context of the offence

The Court affirmed the dicta from R v Grant Smith [2015] EWCA Crim 1482 (‘Grant Smith’) at [14]. In sum that stated:

  1. The purpose behind the words ‘serious in the context of the offence’ is to distinguish between the level of violence which is ‘inherent or par in a standard section 18 offence’ and that which goes beyond this level; and
  2. The level of harm which will justify a category 1 finding ‘must be significantly above the serious level of harm which is normal for the purpose of section 18’.

Sustained or repeated assault

Again, the Court affirmed dicta from Grant Smith at [18], which is summarised as follows:

  1. The words sustained and repeated are qualitatively different;
  2. Sustained is indicative of the length of time;
  3. Repeated is indicative of the number of blows;
  4. The concept of sustained or repeated requires some degree of ‘persistent repetition’;
  5. The concepts must be read in light of the distinction between the category 1 and 2 starting points and any higher sentence should reflect this difference;
  6. Two blows may not be sufficient to justify placing a case in category 1;
  7. Two blows, one of which was not said to amount to a section 18 offence, would not normally justify placing a case in category 1;
  8. However, each case will depend on its facts.


The Court of Appeal held in the instant case that the injuries caused in this case, although serious, were not “significantly above the serious level of harm which is normal for the purpose of section 18” because they were “considerably less grave than the injuries suffered by victims in many cases involving section 18 offences”.

The Court further held that, although there were cuts to two different areas of the body and that the assault had lasted a couple of minutes, this was not a sustained or repeated assault.

The Court therefore decided that the correct starting point was category 2 and 6 years’ custody. However, the Court considered the sentence to be aggravated considerably: the offence was premediated  (shown by the brining of the weapon); there had been a series of blows at different areas of the body including the face and neck; it took place at the victim’s home; and the attack involved two victims (the Court considered the ABH matter fell to be taken into account as part of this sentence).

The Court therefore quashed the sentence of 12 years’ and imposed a sentence of 8 years’ imprisonment, allowing for a discount of 1 year for the appellant’s mitigation.


The Court’s decision is noteworthy for affirming the guidance that was provided in Grant Smith as outlined above. The Court was keen to stress, both in this decision and in Grant Smith, that the sentencing assessment is ‘fact-specific’ and therefore the value that could be derived form other cases was ‘limited’. The focus for practitioners, therefore, for each of the factors under consideration is, primarily, an intense assessment of the facts of the case, such as: the number of blows; the length of time of the assault; the number of sites of injury; the degree of injury etc.

However, this statement has to be taken into consideration with the Court’s interpretation of the ‘serious in the context of the offence factor’: the Court specifically disregarded this factor in the present case on the basis of a broad comparative assessment to other cases. Practitioners should, therefore, note that a broad reliance as to the varying levels of harm which can occur in section 18 cases will be important and that in appropriate cases reference to case law may be suitable.

Nathan Davis

Pupil Barrister

Nathan is a common law pupil who is currently undertaking his second six.