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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pashmfouroush & Anor, R v [2006] EWCA Crim 2330 (1 September 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/2330.html Cite as: [2006] EWCA Crim 2330

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		Friday 1 September 2006

Friday 1 September 2006

LORD JUSTICE RICHARDS:

1. On 25 October 2005, following a trial in the Crown Court at Liverpool before Miss Recorder Penna and a jury, the first appellant, Farshad Pashmfouroush, was convicted of an offence of assault occasioning actual bodily harm (count 1 on the indictment). His wife, Mina Pashmfouroush, was convicted of an offence of assault by beating (count 2) and an offence of affray (count 3). On 21 November 2005, Mr Pashmfouroush was sentenced to twelve months' imprisonment and Mrs Pashmfouroush was made the subject of a compensation order. They each appeal against conviction by leave of the single judge
2. The offences concern events which occurred at an upstairs flat at 15 Pasture Road, Moreton, where a woman called Carla Anderson lived as tenant. She had been a tenant for about fifteen months at the date of the incident. The property was sub-let to her by the appellants who also rented a fast-food restaurant directly below the flat.
3. On 29 October 2004, the appellants called at the flat with their young son and began to change the locks. Miss Anderson was at the premises at the time with her 3 year old son, her friend Katie Hewitt and Miss Hewitt's young daughter. A neighbour, Miss Kellie-Ann Anders, was out on the landing smoking a cigarette. When the appellants let themselves in and began to change the locks, Miss Anderson objected. A disturbance ensued which resulted in the police being called by Miss Hewitt. It was the prosecution case that in the course of the disturbance Mr Pashmfouroush had punched Miss Anderson and had hit her with a screwdriver, causing her to suffer a split lip and a gash to the back of her head (count 1). Further, it was the prosecution case that Mrs Pashmfouroush had struck Miss Anderson and pulled her hair (count 2), and that she had used or threatened violence towards Katie Hewitt and Kellie-Ann Anders in such a manner as to cause them alarm or distress (count 3). It was the defence case that the appellant had previously provided Miss Anderson with written notice to quit the flat and that she had agreed to leave four days earlier. They had not expected anyone to be there on the day when they arrived to change the locks. They denied using or threatening unlawful violence against anyone and said that they only sought lawfully to defend themselves after being subjected to an attack. It was not in dispute that there had been no court order requiring Miss Anderson to vacate the premises and accordingly, if she had not agreed to go, the appellants had been acting unlawfully in entering the premises and trying to change the locks. Moreover, in those circumstances she would have been entitled to use reasonable force to prevent them doing so.
4. In her evidence Carla Anderson said that she and Katie Hewitt had spent the afternoon putting up decorations in preparation for a party. Her son and Katie's daughter were watching television. She answered a knock at the door and was met with Mrs Pashmfouroush, who aggressively pushed past, grabbed her and told her to get out. Mr Pashmfouroush also appeared in the flat. His wife continued screaming and aggressively pushed Miss Hewitt who had come out of the kitchen after hearing all the shouting. Miss Anderson had a scuffle with Mrs Pashmfouroush. Miss Hewitt said that she was calling the police. Mr Pashmfouroush took out a screwdriver and started to change the locks. He then punched Miss Anderson in the face, causing her to fall backwards. As she got back up he punched her again. Miss Hewitt ran out. Mrs Pashmfouroush pulled Miss Anderson's hair and then ended up in another fight. Mr Pashmfouroush then hit her with the screwdriver, causing a cut to her head. Miss Anders came in from the landing and tried to take Miss Anderson's son away, but Mrs Pashmfouroush pulled her hair and punched her. The police arrived, after which Mrs Pashmfouroush sat on the stairs and (as Miss Anderson said) pretended to be having a miscarriage. Miss Anderson denied that there had been an agreement for her to vacate the property to the day of incident, though she accepted that she had received letters from the appellants. She produced from her handbag two letters which, she said, she had received after the date of the incident. She also said that there had been no problems until she had complained to the appellants about the condition of the flat around two weeks earlier.
5. Counsel for Mr Pashmfouroush applied to cross-examine Miss Anderson on certain recorded delivery receipts which showed dates when letters from the appellant had, according to them, been sent to her. The cross-examination was to be directed to her denial of receipt of correspondence from them prior to the day of the incident. The Recorder ruled against that application. One of the grounds of appeal, to which we will return, is that she erred in making that ruling.
6. Miss Hewitt in her evidence at trial said that Mr Pashmfouroush repeatedly punched Miss Anderson while holding a screwdriver in his hand at the time. She grabbed her own daughter and ran to the neighbour's for help. She returned and looked into the hall-way and saw Mr Pashmfouroush bending over and hitting Miss Anderson while he had a screwdriver in his hand. She felt terrified and ran downstairs to wait for the police.
7. Miss Anders said that, as she stood outside having a cigarette, she heard shouts of "You owe me money" and "I want you out". She then heard a child shouting for his mother and she went to look inside the flat. She saw Miss Anderson with a swollen lip. She pushed through to get Miss Anderson's son out of the flat. As she turned to leave with him, Mrs Pashmfouroush punched her. She punched back. Mrs Pashmfouroush then started "ragging" her hair and they fell to the floor, where she was kicked in the leg and suffered a small cut. She could hear Mr Pashmfouroush arguing with Miss Anderson and saw him raise his hand, holding the screwdriver, and hit Miss Anderson on the back of the head with it. Mrs Pashmfouroush said that she was pregnant, and so Miss Anders stopped the scuffle with her.
8. In cross-examination Miss Anders was asked questions about certain differences between her evidence in court and her written witness statement to the police. This led to a prosecution application to re-examine her on parts of the witness statement on which she had not been cross-examined. The Recorder acceded to that application. One of the grounds of appeal is that the Recorder erred in so ruling. We will return to that and to a related contention that the Recorder wrongly refused to hear further defence submissions following her ruling. When she was re-examined by the prosecution by reference to her witness statement, Miss Anders acknowledged that she had said in that statement that Mrs Pashmfouroush had entered the flat first. That was materially different from the account she had given earlier on in her evidence in-chief and, unlike what she had said earlier on, was in line with the evidence given by other prosecution witnesses.
9. A further witness was a neighbour, Natalie Larkin, who said that she went to the flat in response to Miss Hewitt's call for help. She saw Miss Anderson with a swollen and bleeding lip and she was trying to stop Mr Pashmfouroush from taking off the lock. Miss Larkin was five months pregnant, so there was not much she could do, but she tried to get between them. She said that Mr Pashmfouroush had a screwdriver in each hand. As Miss Anderson leaned forward, he smacked her to the back of the head with the screwdriver in his right hand, using quite a bit of force, and she stumbled back. As she put her hand to her head, there was blood visible. Miss Larkin told Mr Pashmfouroush that he could not do that, to which he replied, "I didn't do anything". Mrs Pashmfouroush flew at Miss Anders and they fell to the floor fighting. Mr Pashmfouroush grabbed Miss Anders by the hair. His wife then jumped up and sat on the stairs, screaming that she was pregnant and had lost her baby.
10. In addition, there was evidence from police officers who attended the scene. The appellants' police interviews were also put in evidence. In those interviews they denied the offences and provided an account which they repeated in their evidence before the jury.
11. In that evidence both Mr and Mrs Pashmfouroush said that they had expected the flat to have been vacated four days before their visit to change the locks. A number of letters had been sent to Miss Anderson giving her notice to leave the property due to non-payment of rent and difficulties with her behaviour as a tenant. They said that when they went to the flat on the day in question, Mrs Pashmfouroush was in front and knocked at the door on hearing voices. It was presumed that Miss Anderson was there to collect the last of her things. They did not ask her why she had not moved out or why she was still there. Mr Pashmfouroush said that he had been working on the locks for a couple of minutes when Miss Anderson became violent. She punched and scratched him, and he pushed her away to protect herself. She fell into a chair in the hall way. He said that he did not strike any blows against her, but went back to the locks where he suffered further attacks from her. When Miss Hewitt said that she would call the police, he said, "Please do so". His evidence was that he suffered a blow to the head and that his face was full of blood. His injuries caused scars on the face that could still be seen. He denied having punched Miss Anderson to the mouth or having hit her with a screwdriver or having caused the cut to her lip or the gash to her head. He said that he did not have a screwdriver in his hand, as alleged by Miss Larkin. The screwdriver found in the flat must have fallen out of the tool box. He said that his wife had not manhandled Miss Anderson or caused a fight with her. In the course of cross-examination he said that he had tried to leave on many occasions but had been stopped after Miss Anderson had closed the door on him.
12. The prosecution applied for certain previous convictions of Mr Pashmfouroush to be admitted in evidence. The Recorder declined to allow in convictions from 1981 and 1990, but ruled in favour of admitting into evidence a conviction in August 2005 for obstructing a police officer. At the time of the trial that 2005 conviction was under appeal, which was the primary basis for the defence resisting its admission into evidence. On 4 August 2006, however, Mr Pashmfouroush's appeal against that conviction was dismissed at Liverpool Crown Court. The consequence of the dismissal of that appeal is that one of the grounds before us relating to the admission in evidence of a conviction that was under appeal has fallen away. We need say no more about it.
13. Mrs Pashmfouroush said in her evidence that Miss Anderson had stepped back to allow the appellants into the property. She denied having pushed her way in. She said that she turned to speak to her husband who was busy with the locks when Miss Anderson started to pull her hair and kick her. She tried to hold Miss Anderson, but Miss Anderson grabbed her hair and started kicking her towards the stomach. Miss Anders came in, grabbed her hair and pushed her down. She tried to get out, but was unable to do so because the others were in front of her. She was very scared and pleaded with Miss Anders to stop, telling her that she was pregnant. Miss Anders eventually stopped, but then started attacking her husband. There was something shiny in her hand and she pulled on her jacket to stop her, which provoked a further attack. Mrs Pashmfouroush said that she had bruises all over her body and head and was in great pain. It was put to her in cross-examination by reference to a 999 call that she had said, "Get out, get out". She accepted that it was her voice saying that, but she said that she was speaking to her son who was standing by the door.
14. In the evidence of Mr and Mrs Pashmfouroush, reference was made to her having suffered a miscarriage, but there was no medical evidence to support those assertions. Because of certain comments made by prosecuting counsel in the course of cross-examination an issue arose as to whether the Recorder should give a specific direction warning against speculation on this matter. The Recorder declined to give a specific direction. A further ground of appeal arises out of that. Again we will come to it in a moment.
15. That was the nature of the evidence at the trial which, we are told, took six days -- a surprising length of time for an issue of this nature.
16. The submissions before us on behalf of the appellants have been run in tandem by Mr Reid on behalf of Mr Pashmfouroush and Miss Hertzog on behalf of Mrs Pashmfouroush. It is convenient to deal with the various issues together, which is how they were addressed in argument. On certain of the issues we have heard from Mr Morris on behalf of the Crown. Mr Morris and Miss Hertzog were at the trial; Mr Reid was not.
17. The first issue raised by both appellants concerns the Recorder's refusal to allow further cross-examination of Carla Anderson about the receipt of letters from the appellants before the incident and in particular cross-examination on the basis of recorded delivery slips that were said to confirm the dates of the correspondence in question. It is submitted for the appellants that the proposed questioning was not simply cross-examination as to credit; it did not relate simply to a collateral issue, but it concerned a significant issue in the case. The Crown had introduced Miss Anderson's version of events in the course of her evidence-in-chief. She had said that the appellants had come round and started to change the locks, unannounced and unexpectedly. The defence case was that there had been discussions between them and that she had agreed to leave, as confirmed in letters sent to her, and that the appellants expected her to have left the flat some days before they went to change the locks. Which of those two versions was correct was central to a proper understanding of what happened when the appellants went to the flat. The defence were therefore entitled to cross-examine Miss Anderson by reference to the recorded delivery receipts about her denial that she had received letters in advance of the visit. That line of questioning might have undermined her testimony and credibility. Although the recorded delivery receipts were put before the jury later in the course of Mr Pashmfouroush's evidence, it is submitted that that did not rectify matters; the jury were entitled to hear how Miss Anderson herself responded when presented with that evidence.
18. Mr Morris says that the prosecution argued before the Recorder that the tenancy dispute was entirely collateral to the issue for the jury to decide, and that issues relating to Miss Anderson's conduct in the course of her tenancy could relate only to credibility. When questioned about receipt of letters about non-payment of rent and being required to leave the flat, she agreed that she had received some letters but said she thought that they had arrived after the incident. When at a later point counsel sought to develop the issue by showing her the recorded delivery receipts, objection was properly taken on the ground that such questions related to the tenancy dispute and were collateral to the issue and that the defence sought to go behind answers to questions that related only to credibility. It is submitted that the Recorder ruled that this was a collateral issue and that the answers given by the witness were final and that the court will not interfere with such an assessment unless it was plainly wrong: see R v Somers [1999] Crim LR 744. The Recorder was within her remit in trying to keep within reasonable limits a trial of a relatively simple matter.
19. As we read the Recorder's ruling, which we do not need to set out verbatim, she did not necessarily accept the prosecution's submission that this was a collateral issue. The basis of her decision was that the complainant had already been questioned at length about the receipt of the letters but that the time had come to draw a line. She said that it would be open to Mr Pashmfouroush to put the material in evidence himself -- something which suggests that she accepted that the material went to an issue in the case. However, in effect she said that enough was enough and that she would not allow counsel to come back to ask yet more questions about receipt of the letters, this time by reference to the recorded delivery receipts.
20. We hesitate to criticise an exercise of judgment by the Recorder in drawing the line she did in order to keep within reasonable limits a trial which became over-long. On the other hand, it seems to us that the line of questioning about the recorded delivery receipts was a permissible line of questioning, whether as going to an issue in the case or as a question going to credit. To put the receipts to the witness in the course of cross-examination was different from leading evidence to contradict an answer given by the witness on a matter relating to credit and was in principle permissible. Moreover, it is difficult to see that the line of questioning would have added significantly to the overall length of the proceedings. It would therefore, as it seems to us, have been better to allow the questions to be asked. However, the way in which the Recorder dealt with the matter did not, in our judgment, affect the safety of the conviction. We do not accept that the denial of an opportunity to cross-examine Miss Anderson by reference to those recorded delivery receipts could have made any significant difference to the jury's assessment of the witnesses. The jury heard what she had to say about the letters and what Mr Pashmfouroush had to say about them. The jury were handed the letters and the recorded delivery receipts. All the material was there. The jury were in a good position to draw conclusions on the issue to the extent that they considered it to have any importance. No doubt they were addressed on it in closing submissions by the defence. Therefore even if the Recorder erred in disallowing that further cross-examination of Miss Anderson, it does not, in our judgment, provide a sustainable ground of appeal.
21. The next issue is a submission that the Recorder erred in allowing the prosecution to re-examine Miss Anders on parts of her witness statement on which she had not been cross-examined. It is said that the prosecution should have been permitted to re-examine her only on those parts on which she had been cross-examined. Both in his skeleton argument and in his oral submission, Mr Morris has touched on the background as to what happened. In her statement to the police Miss Anders had described how the incident began, and had described it in terms that were in line with the evidence of other prosecution witnesses. It is said that she suffered severely from nerves at the beginning of her evidence and that, in describing how the incident began, she departed from her witness statement. Unlike others, she described Mrs Pashmfouroush as waiting outside the flat at the beginning of the incident. In cross-examination she was shown a copy of her witness statement by defence counsel and asked certain questions to the effect that what she had said in part of her evidence (parts unconnected with her description of the beginning of the incident) did not correspond with the witness statements; that she had said things that were not in that witness statement. The defence did not ask her any questions about what she said about the beginning of the incident. The prosecution, we are told, took the view that the effect of this was to create a false and unfair impression that what Miss Anders had said in her oral evidence about the beginning of the incident was consistent with what she had said in her statement. That was why the prosecution applied under section 120(4) of the Criminal Justice Act 2003 for the previous statement to be admitted as evidence of what she had said at the time of the incident as to how the incident started, and applied to re-examine her on this issue.
22. After hearing argument, the Recorder ruled that section 120(4) was not appropriate, but that section 120(3) was. That subsection reads:

"A statement made by the witness in a document --

(a) which is used by him to refresh his memory while giving evidence,

(b) on which he is cross-examined, and

(c) which as a consequence is received in evidence in the proceedings,

is admissible as evidence of any matters stated of which oral evidence by him would be admissible."

The relevant part of the Recorder's ruling was in these terms:

"She has made a statement in a document, it has been used, she has certainly been cross-examined on the document and as a consequence it has been received as evidence in the proceedings, surely then it is admissible as evidence of any matter stated of which oral evidence would be admissible."

On that basis the Recorder allowed the re-examination of Miss Anders as to how she described the beginning of the incident in her written witness statement.

23. It is submitted on behalf of the appellants that the Recorder erred in her construction of section 120(3) and in allowing the witness statements to be received in pursuance of that subsection and in allowing further re-examination in relation to parts of the document that had not been raised in cross-examination. The prosecution's position (at least formally) is that the witness statement was properly admitted in evidence, that re-examination on it was properly allowed and that the impact of the Recorder's decision was simply to prevent a misleading impression of the evidence to go before the jury. In the course of his oral submissions, however, Mr Morris has acknowledged that matters probably did not proceed as they should have done and that an irregularity occurred in relation to this part of the proceedings.

24. In our judgment the Recorder did err in concluding that the situation fell within section 120(3). It does not appear that this witness statement had been used by the witness to refresh her memory while giving evidence. On the contrary, it was put to her on the basis that there was an inconsistency between her oral evidence and the witness statement, which did not contain matters she had stated in her oral evidence. As an inconsistent statement the matter would have been properly dealt with under section 119 of the 2003 Act.

24. Even if it could be said that the document had been used by the witness to refresh her memory while giving evidence, it still does not seem to us that the matter falls within section 120(3) so as to render the witness statement as a whole admissible in evidence. Section 120(3) does not provide for the circumstances in which a documentary statement may be received in evidence, but provides for the evidential status of a document where it is received in evidence. Whether it should be received in evidence in the first place is subject to the former common law rules. This is a subject dealt with in the 2006 edition of Archbold at paragraph 8-86. We need not dwell on it at length, but the point is made that where a document is used to refresh a witness's memory and cross-examination is confined to those parts of the document which have already been used by the witnesses to refresh his memory, then the document does not become evidence in the case. If, however, the cross-examination strays beyond that part of the document which has been used to refresh the witness's memory, then the party calling the witness can insist on it being treated as evidence in the case and it will thereupon become an exhibit. It would appear that that is the situation which section 120(3) addresses. The relevant paragraph in Archbold points out that section 120 does not purport to alter the common law rule as to the circumstances in which a memory-refreshing document may be exhibited, but provides that the effect of exhibiting such a document is that it becomes evidence as to the truth of its contents.
25. On the face of it, the Recorder was wrong to conclude that section 120(3) provided a basis for the receipt of the entirety of the witness statement into evidence. Moreover, even if it was received in evidence, it does not follow that the prosecution was entitled to re-examine Miss Anders by reference to parts of that witness statement that had not been canvassed in cross-examination. For all those reasons we take the view that the re-examination allowed by the Recorder should not have occurred. Things went procedurally wrong.
26. On the other hand, it would also appear that much the same result could have been achieved by the use of section 139 concerning the use of documents to refresh a witness's memory, had prosecuting counsel thought of deploying that section as a way of refreshing Miss Anders's memory when at the outset of her evidence-in-chief she departed from what was set out in her witness statement. It is not what was actually done, but had it been done it would have been likely to achieve much the same result as that which occurred.
27. What occurred meant that the jury were not left under a false and mistaken impression that they might otherwise have had, that the earlier parts of Miss Anders's witness statement accorded with her oral evidence. Most importantly, however, we do not think that there is any realistic possibility that the outcome of the case would have been different if this procedural error had not occurred. We have considered the overall strength of the evidence as to the assaults on the complainants by both appellants, including the evidence concerning the injuries received. We are satisfied, having regard to our assessment of the evidence overall, that the jury's conclusion would have been the same if Miss Anders's original statement about the early stages of the incident had remained uncorrected by reference to the contents of her witness statement. We do not think that there is any realistic possibility of a materially different assessment of the witnesses or ultimate conclusion being reached by the jury.
28. A subsidiary matter raised in the written grounds, but not pursued in the oral submissions, concerned a contention that the Recorder erred in preventing further argument from counsel on the issue of the admissibility of Miss Anders's witness statement following her initial ruling. In our view, having looked at the transcript of what was said subsequently by the Recorder, we do not think that there is any force in the argument that the Recorder improperly curtailed submissions by defence counsel. In any event, nothing turn on this point in the light of what we have said about the substantive ground concerning the re-examination of Miss Anders.
29. A final area to be covered arises out of evidence given by Mr and Mrs Pashmfouroush that she had suffered a miscarriage as a result of the violence of Miss Anderson during the incident. That evidence was challenged by the Crown. In fact, on being arrested Mrs Pashmfouroush told the custody staff that she was pregnant and was concerned about the possibility of a miscarriage. For that reason arrangements were made for her to attend a local hospital, where she was examined. She was given a pregnancy test, which was negative. She returned the next day, when she was given a second pregnancy test and an ultrasound scan, both of which were also negative. The medical notes were served on the defence, but the defence objected to their admission. The Recorder ruled them inadmissible. The prosecution in turn objected to the giving of hearsay evidence by Mrs Pashmfouroush in re-examination as to what a doctor was purported to have said to her about the miscarriage. In the result there was no medical evidence before the jury on the question of a miscarriage.
30. The defence expressed concern, however, about the impression that might have been created by two remarks by prosecution counsel. One, in objecting to the question put in re-examination of Mrs Pashmfouroush, was a sotto voce comment, "We would be interested or delighted to hear from the doctor". The other was a question in cross-examination of Mr Pashmfouroush: "So there will be a medical report about this, will there?" The Recorder refused to give the jury a specific direction or comment concerning Mrs Pashmfouroush's failure to call expert evidence to prove that she had suffered a miscarriage and in particular a direction not to speculate as to why expert evidence had not been called on the subject. She said that she did not intend to comment on the defence not calling medical evidence; she intended to give general directions not to speculate and on the burden of proof -- directions which in due course she duly gave and about which no complaint is or could be made. She considered that to make any specific comment risked drawing more attention to the issue than it merited and that general guidance would be of greater assistance to the jury and would ensure fairness.
31. It is submitted on the appellants' behalf that the Recorder erred in adopting that course. It is said that, in the absence of a specific direction, the comments made by prosecuting counsel had the effect of reversing the burden of proof and gave rise to a risk that the jury would speculate as to why expert evidence had not been called. There was a substantial risk that the jury would use the lack of expert evidence improperly against Mrs Pashmfouroush, with a spill-over effect in relation to Mr Pashmfouroush, and that the exercise of discretion by the Recorder was wrong and unreasonable.
32. The prosecution submit that the Recorder's general directions as to burden of proof and avoidance of speculation were appropriate and sufficient. We agree. In our judgment the Recorder gave a properly reasoned basis for her decision not to give a specific direction. She reasonably concluded that such a direction could do more harm than good. She was entitled to rely on her general directions which were clear and correct.
33. Following the ruling on the question of directions, counsel for Mr Pashmfouroush requested that if the absence of medical evidence was explained by the fact that Mrs Pashmfouroush's legal representatives concluded that they did not need to obtain such evidence and had made a decision not to instruct a doctor, then the defence should be given the chance to make a formal admission to that effect. The Recorder declined to allow the matter to be dealt with in that way. She repeated that she did not want the jury to be distracted by the issue of the miscarriage and that the central issue in the case was who hit whom first. In our view there is no substance to a complaint that is made about that aspect of the Recorder's decision. Had the defence wished to adduce evidence about the failure to instruct a doctor, they could have done so by calling the appellant's solicitor. Had they done so, there would no doubt have been cross-examination on the point. The matter could not sensibly have been dealt with in the circumstances by an admission. The suggested admission after the conclusion of the evidence was a wholly inappropriate means of addressing such a matter in the face of the sceptical stance understandably adopted by the prosecution. In any event, the Recorder was fully entitled to rule as she did on that request.
34. Accordingly, the conclusion we reach is that none of the grounds of appeal succeeds in the case of either appellant. The two appeals must be dismissed for the reasons we have given.
35. There is also before the court a renewed application on the part of Mr Pashmfouroush for leave to appeal against sentence, though the matter is academic because the sentence has already been served. Mr Pashmfouroush is 43 years of age. He has a number of previous convictions to which we have referred briefly in our judgment on the appeal against conviction. There was an offence in 1981 of criminal damage, two counts of theft in 1990, and the August 2005 offence of obstructing a police officer.
36. The pre-sentence report provided information about his background. He came to Britain from Iran to study. He obtained a first degree and Masters Degree in engineering. After computer-related work, he started up his own take-away business three years ago. He described an excellent marriage and home life. There was a 9 year old son, and another child was due in May or June 2005. He was assessed as representing a low risk of re-offending and of harm to the public. He expressed fears about his ability to cope with a prison environment and concern about being separated from his wife during her pregnancy, as well as about the effects on his son and on his business.
37. In passing sentence upon him, the Recorder identified a number of aggravating features of his offence, namely: (1) the breach of position of trust and power that he had as Miss Anderson's landlord; (2) the cold-blooded nature of the assault; nothing was going to stop him from achieving his objective of changing the lock; he had no sympathy or compassion for Miss Anderson's position; there was an absence of remorse or acknowledgement of responsibility either at the time or subsequently through to the trial; (3) the vulnerable nature of the victim; (4) the fact that the offence was committed in front of frightened children; and (5) the sustained nature of the attack which involved at least two blows delivered with the hand or fist and a nasty injury caused with a weapon which was used in a further attack By way of mitigation the Recorder took into account the low level of previous offending, the absence of any previous custodial sentence and his domestic circumstances.
38. In the grounds of appeal it is said that the sentence imposed was manifestly excessive in the light of his age and antecedent history, his low risk of re-offending and harm to the public, the impact of the custodial sentence on his family and business, the relatively minor injuries received by the complainant, and the impact of custody on him, which is far greater than the impact of the offence upon the complainant.
39. In refusing leave to appeal against sentence, the single judge referred to the aggravating features identified by the trial judge and said that this meant that the sentence was well within the appropriate range given that this was a sentence imposed in a contested case and therefore without the mitigation of a guilty plea. We are in full agreement with the single judge's observations. We therefore refuse the renewed application.