What is the likelihood of a custodial sentence for a charge of assault?

[user1]

What is the likely sentence for assault for a first time offender (excepting a 5 year old conviction for Breach of the Peace)? The victim suffered facial bruising and a fractured jaw requiring reconstructive facial surgery.
What differentiates between Common Assault and Actual Bodily Harm (the defendant does not yet know what the charge will be)? Under what circumstances would the case be passed from the magistrates to the crown court?

[Buenchico]

(2-part post):

The Crown Prosecution Service provide guidance to their staff, to ensure that the correct charge is brought before the courts. This guidance is based upon both statute law and court precedents, so it's rarely wrong.

Unlike many other 'official' bodies, the CPS doesn't regard the advice it gives to its staff as confidential. The information is freely available to anyone, here:
http://www.cps.gov.uk/legal/section5/chapter_c .html

If you read through that document, you'll see that 'compound fractures, broken cheek bone, jaw, ribs, etc' fall into the category of grievous bodily harm ('GBH') rather than 'ABH' or 'Common Assault'.

If the CPS is convinced that 'GBH' is the correct charge, they then have to decide whether the charge should be brought under Section 20 (which is just 'GBH') or Section 18 (which is 'GBH with intent'). From that link, you'll see that
"Factors that may indicate the specific intent include:
* a repeated or planned attack;
* deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack;
* making prior threats;
* using an offensive weapon against, or kicking the victim's head."

If the charge is brought under Section 20, the offence is 'either way'. This means that it may be dealt with in the magistrates' court or it can be referred to the Crown court. The usual reasons for the case being transferred to the Crown court are either that the defendant elects trial by jury or that the magistrates decide that, if the defendant is convicted, their sentencing powers would be insufficient. The maximum penalty in a magistrates' court is 6 months imprisonment. The maximum in a Crown court is 5 years.

[Buenchico]

If the charge is brought under Section 18, the offence is 'indictable only'. That means that it must be heard before a Crown court, where the maximum sentence is life imprisonment.

A first time offender, charged under Section 20 might receive a non-custodial sentence but it's still more likely that he'd be sent to prison. (A possible sentence might be 12 months, of which 6 would actually be spent 'inside').

A first time offender, charged under Section 18 could theoretically receive a non-custodial sentence but it's extremely rare. (The average for Section 18 offences is around 4 years). A typical sentence might be 2 to 3 years imprisonment (with half of that time 'inside').

Based upon the information you've provided, I think that it's extremely unlikely that an ABH charge (rather than GBH) would be brought. There's certainly no way that 'Common Assault' would apply. Even if the defendant's legal team could persuade the CPS that an ABH charge was the most appropriate, it might not help the defendant much since ABH remains an' either way' offence, similar to Section 20 GBH and with the same maximum penalties.

Chris