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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kee, R v [2009] EWCA Crim 1716 (10 June 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1716.html Cite as: [2009] EWCA Crim 1716, [2010] 1 Cr App Rep (S) 45, [2010] 1 Cr App R (S) 45

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 10 June 2009

1. Mr Justice King: This appellant is 29-years of age, her date of birth being 27 July 1979. Before the matter with which this court is concerned she was a lady of total good character who had held down for some years a job of some responsibility and exposure to stress, as an airline attendant.
2. She now appeals with leave of the single judge against a sentence of two and a half years' imprisonment passed upon her at the Crown Court at Manchester by His Honour Judge Rudland for an offence of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 committed some 15 months earlier on 20 November 2007.
3. The appellant had previously on 27 January 2009 before the same court pleaded guilty to this offence. The judge accepted that she was entitled to a full discount for her plea. He expressly indicated that he took as his starting point as the appropriate sentence for this offending after trial, that of four years. That with the full discount for plea would have brought the sentence to one of two years and eight months. The judge however expressly discounted the sentence further to one of two years and six months, to reflect particular personal mitigation of the appellant.
4. This offence involved a serious matter, namely a "glassing" in a public bar in which the appellant twice hit the victim in the face with an empty wine glass, although we accept it may well be that the glass hit him twice in such quick succession that to some witnesses it seemed to be just one blow. It caused serious facial disfigurement to the victim with significant psychological effects.
5. We turn to the facts of the offence with a little more particularity. The victim, Mr Liam Sharratt a PhD student, was with friends in the Living Room bar in Manchester. It was about 11.30 in the evening. At that point the appellant approached the group. It was quite apparent at that time she was extremely drunk. She a red wine moustache. Its staining extended up her cheeks and her teeth were discoloured. She also had a nearly full glass of red wine in her hand.
6. Initially there was some jovial banter between the appellant and the group of the victim, and the appellant was teased about her stained teeth. She gave similar banter back. The victim to be, joined in with the banter. However, significantly, that banter turned to a more ugly version in which at one stage Liam Sharratt was overheard by one of the bar staff saying to the appellant, "You're a slag aren't you." The appellant perhaps not surprisingly took offence at this, and said to one of Mr Sharratt's friends, "Who does he think he is? He has no right to talk to me like that." She then turned to Mr Sharratt and said "Who do you think you are, Callum? Fuck off." This ended the good humour. The appellant then "flipped" as Mr Sharratt told her to "piss off".
7. At that point the appellant threw the contents of the wine glass over him. He laughed which further enranged her and she punched him two or three times to the head. They were not heavy blows because Mr Sharratt continued to laugh. However then, apparently without hesitation, the appellant hit Mr Sharratt twice in the face with the empty wine glass. The glass broke after the first blow. The second blow in particular was delivered with force causing Mr Sharratt to step backwards. As we have already indicated, the blows were in quick succession and to some witness it appeared to be only one blow.
8. Unfortunately, Mr Sharratt suffered a large C-shaped wound to his right cheek. This later required surgery. It was closed with a very large number of internal and external stitches. There were further injuries to his head and forehead requiring sutures.
9. The evidence was that after her attack, the appellant was standing there "like she was in shock by what she had done". She had to be escorted away by the management. When told the police had been called, she said, "I haven't done anything." The manager said, "Do you realise what you have done? You have just put a glass in a bloke's face," to which she said at that point, "It wasn't me."
10. She was arrested at the scene. She gave a no comment interview but there was heavy blood staining on her clothing which matched the DNA of Mr Sharratt.
11. In a psychiatric report, it was stated that the appellant's inability to recall details of the assault might well be indicative of amnesia associated with alcohol intoxication.
12. The material before the court below relating to the injuries sustained by Mr Sharratt, fully justified the judge's view that he had received serious injuries with permanent effect. In particular, Mr Sharratt described in his statements how there had been an accumulation of liquid within his cheek as a result of the sinus not being able to drain properly. The wound had started to reopen when the stitches had been taken out. There had to be further sutures. He had been told by the maxillofacial department that he would be scarred for life. He had to wear silicone patches on the scar every day. There would be a need in the future for several scar revision surgeries.
13. He undoubtedly suffered psychological trauma as a result. He described how he had begun to feel very low, and had not wanted to leave his house. He went to his GP who diagnosed him with post-traumatic stress order. He was prescribed anti-depressants and referred to a psychiatrist. Sadly he had been unable to work on his PhD course for a long period of time and was told it would take him an extra year to finish. He had felt unable to conduct presentations or teach. He had found it very difficult to forget the attack and often what people said to him about his injuries and his disfigurement triggered his re-experiencing of the trauma.
14. We have indicated already that the appellant is of total good character.
15. The pre-sentence report recorded that the appellant had no recollection of the violence inflicted upon her victim but that she did not seek to contest his recollection of events. She is reported as having readily accepted her culpability for the injuries suffered by Mr Sharratt and as relaying her horror at being responsible for causing such a significant level of harm.
16. The report indicated that the applicant had had some 15 months to reflect on her actions and she presented as genuinely remorseful, having been frightened herself by the realisation for her potential to cause harm. The report indicated that there was a low risk of reoffending. There were moreover concerns about the state of mind of the appellant herself with a possibility of self-harm.
17. Two grounds of appeal are raised. The primary ground is that the starting point of four years was too high, having regard to the circumstances of the offending which show that it was not premeditated as such. Mr Csoka on behalf of the appellant acknowledges, however, the aggravating feature of the glass being used twice, although he emphasises that it was usage in quick succession.
18. The second ground relates to what is undoubtedly the considerable personal mitigation open to the appellant which it is said the sentence did not properly reflect. Reference is made to the evidence of a degree of provocation, in the form of the banter which turned more ugly.
19. Emphasis is put on the fact that the appellant acted totally out of character and that she has shown genuine remorse. She patently is not by nature a violent person, and, although she was clearly very drunk on this occasion, there is no suggestion this was normal for her.
20. The impact of her offending on her own life in the 15 months before sentence is said to have been devastating. She had lost her career and her home. There are references made in the written grounds which we can appreciate, of her being prior to sentence visibly terrified in the dock. The submission is made that there was no risk of reoffending, let alone violent offending, and a sentence of imprisonment of any length would punish her severely.
21. We have considered these submissions with care. We agree that the starting point was too high. The judge was undoubtedly correct in his sentencing remarks to characterise the offence as a vicious and ultimately unwarranted attack on Mr Sharratt which has had serious continuing effects upon him physically, mentally, professionally, domestically and socially. We moreover acknowledge that this offence did involve the use of a glass twice. Nonetheless, in our judgment, the circumstances of this offending were not such as could properly bring this offence into a starting point of four years, bearing in mind that this offence by definition does not involve the intention to cause the sort of harm which resulted in this case and the maximum sentence available is that of five years. The offending does not easily bring itself within the top bracket of the sentencing guidelines for this type of offence to which the learned judge referred, being not premeditated as such. It fits more easily into the second category where there is a reference to particularly grave injury or where a weapon has been used. In that second category a sentencing range between 12 months and three years' custody, is indicated.
22. Mr Csoka has laid before us a number of fairly old sentencing decisions of this court in support of a submission that a starting point of three years would have been appropriate and in support of a range of 12 months to two years on a plea. Not all of these decisions are in keeping with current practice, but we have regard to the more recent authority of this court in McGhee [2008] 2 Cr App R(S) 53 which gives some support to Mr Csoka on the present facts. Furthermore, we accept that the appellant's personal mitigation in this case is particularly strong.
23. Taking all matters into account, our conclusion is that the starting point after trial for this offending should have been one of three years. This is then to be reduced to two years to give effect to the plea. Having regard to the personal mitigation, which the judge himself considered merited a further discount, we consider that it is appropriate to allow this appeal by reducing the sentence to one of 21 months.