Categorising Offences of Grievous Bodily Harm

May 13, 2020

A Case Comment on Fa XUE v Regina [2020] EWCA Crim 587

By Eddison Flint


On 29 May 2019 the appellant and his girlfriend went to the home of the complainants. When the appellant arrived, he forced his way in, and following a struggle at the door, slashed Mr Gao to the face and side with a knife or razor or similar weapon, constituting the offence of wounding with intent to cause Grievous Bodily Harm (GBH). He then attacked Ms Lin by grabbing her by the neck and trying to throttle her, constituting the offence of Actual Bodily Harm (ABH)

Mr Gao suffered injuries to his face and left hip, importantly, a superficial 5cm laceration to left side of cheek, a triangle type laceration to side of left face above jawline and 2 lacerations on the hip which were sutured under local anaesthetic.

It was noted that the injuries caused the complainant continuing pain and anxiety. He had trouble sleeping and was in a very low mood each day. The injuries to his face were “very obvious knife-cut scars”, which would cause people who noticed them to look at him in a different way.

Crown Court Judgment

The sentencing judge described this attack as vicious and terrifying, noting that the wounds were serious and disfiguring. Six months post-incident the complainant had visible scarring that still troubled him. His Honour went on to note that this was a sustained attack upon a victim in his own home. As a result of the above he held this fell “plainly” into category 1 (greater harm and higher culpability). As such a sentence of 12 years – the staring point of category 1 was passed.

Appellate Decision

Serious in the Context of the offence

The Court in this appeal considered whether the Complainant’s wounds did in fact satisfy the test of being “serious in the context of the offence” in order to constitute greater harm; they were assisted by the case of R v Duff [2016] EWCA Crim 1404 where the victim had lost half of his ear and was permanently disfigured as a result.

The bench considered that whilst the injuries in this case were serious, they were not “significantly above the serious level of harm which is normal for the purpose of section 18” (Para 30), in order to justify raising the starting point from 6 to 12 years.

Sustained or Repeated Assault

The complainant received repeated blows with a blade in this case, four of which resulted in lacerations to the face and hip, it was further accepted that the fight lasted for several minutes.

Despite this the Court of Appeal held that “it was not, in our view, a sustained or repeated assault that was so prolonged or persistent as to take it out of the norm for section 18 offences and therefore to constitute greater harm, justifying a starting point of 12 years’, rather than 6 years’, custody”.

Allowing for the aggravating factors in this case, the Court took a starting point of 6 years and aggravated the sentence to one of 8 years imprisonment allowing the appeal and reducing the custodial term by 4 years.


As the court pointed out “the question of whether a particular section 18 offence is “serious in the context of the offence” for purposes of the sentencing guideline has arisen in a number of cases” in the Court of Appeal, most likely because the 6 year difference in the starting point between categories 2 and 1 is so vast. This case is significant because it supports the proposition that it takes a great deal for an offence to cross the threshold of category 1.

Undoubtedly, this was a serious offence, the complainant was left with visible knife scars on his face and was subjected to at least 4 slash wounds in an assault that lasted several minutes. However, whilst the Court of Appeal recognised this, it also had to accept that the offence of GBH is inherently very serious and covers cases where the injuries caused are much more severe and sustained than those in this case.

The injuries covered by this guideline as pointed out by counsel for the appellant include “quadriplegia, deep wounds penetrating and injuring vital organs with the most serious consequences short of death and seriously and permanently disfiguring facial injuries, including the cutting of facial nerves, blinding in both eyes and interference with ability to speak”. In order to justify a starting point of 12 years custody, it is clear from this case that the injuries will normally have to be particularly grave.

This case makes clear that, within the context of GBH, an extended fight lasting several minutes does not always attract greater harm (“sustained or repeated assault”) on the sentencing guidelines, insofar as to adopt the 12 year starting point.

The court emphasised in this case that categorisation on the sentencing guidelines is fact specific “the determinations made in other cases by reference to other fact patterns are of limited value” (Para 28). Nonetheless, this case is helpful in providing further guidance on what attracts a more severe sentence aiding mitigation for those defending these types of offences.

Finally, the Sentencing Council are currently in a consultation period in relation to the Definitive Guideline on Assaults, ending September 2020. In their 2015 “Synthesis report” the Council noted that regarding GBH with intent, “the guideline resulted in sentences increasing in excess of that estimated [this may have been caused by] issues with applying the step 1 factors in the guideline “injury which is more/less serious in the context of the offence”,[1]  It will be interesting to see how this issue is addressed in the ongoing consultation.