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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 >> Kear, R. v [2011] EWCA Crim 2663 (04 November 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/2663.html Cite as: [2011] EWCA Crim 2663

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		4 November 2011

MR JUSTICE BUTTERFIELD: Mr Justice Henriques will give the judgment of the court.

MR JUSTICE HENRIQUES:

1. The appellant, Dean Kear, is 29 years of age. On 16 June 2011 at the Crown Court at Leicester he pleaded guilty to unlawful wounding. On 15 July 2011 he was sentenced to two years' imprisonment. The period of 69 days spent on electronically monitored curfew was ordered to count towards the sentence. The appellant appeals against sentence by leave of the single judge.
2. In reviewing the facts we are conscious that Mr House, counsel who appears on behalf of the appellant, took issue with certain aspects of the Criminal Appeal Office Summary. The appellant must be assured that factually we approach this appeal on the basis contended for by Mr House. That basis is culled from the CCTV evidence, as opposed to the evidence of eyewitnesses, which may well have been coloured by the swift events before them.
3. On the evening of 6 March 2011 the victim of the wounding was drinking in the Rafters Public House in Barwell. He was leaning against the bar with his arms crossed, in conversation with the appellant and a witness, Daniel Headley. For much of the time the appellant was standing with his hands in his pockets. At some stage a female, Chantelle Pratt, came between the appellant and the victim, but there was no contact between them. Witnesses describe the appellant as being threatening and saying words similar to, "I'll knock you out". After Chantelle Pratt had involved herself, the appellant moved a short distance away and picked up his drink from the bar, a pint tankard, and drank from it. At that stage the appellant was standing between two other males. The victim stepped away from the bar towards the appellant in a manner which to the appellant appeared aggressive. The appellant reacted to this and struck a single blow to the victim's face with his left hand which held the pint glass. The glass shattered on impact. The victim suffered a laceration above the right eye which required eleven sutures. He also suffered minor grazes, a cut to the side of his nose, and some of the glass went into his mouth, causing minor injuries.
4. As a result of the incident a general brawl developed in the public house. The appellant played no part in it and left.
5. He was arrested in the early hours of the following morning. In interview he remained silent. When re-interviewed and shown the CCTV evidence he accepted it was him. He said that he had little recollection of events.
6. The appellant was initially indicted with an offence contrary to section 18 of the Offences against the Person Act 1861. At the plea and case management hearing he pleaded guilty to the offence contrary to section 20. An offer to do so had been made prior to the hearing.
7. His case both then and now is that while he accepted striking the blow and accepted that it was unlawful, it was an overreaction to the conduct of the victim. It was a case where the appellant had stepped away from a confrontation that was developing before the victim approached him in an apparently aggressive manner. He had pleaded guilty at the earliest opportunity.
8. The appellant accordingly relied on the factual basis as outlined by Mr House -- a spontaneous overreaction to an apparently aggressive approach. He already had the glass in his hand; he did not pick it up to use it.
9. He had one minor conviction in 2003 under the Public Order Act when he received a conditional discharge. He had recently endured the breakdown of a long-term relationship in which his partner had had an affair. Matters generally had not been easy. He had a disrupted childhood. In October 2010 his general practitioner prescribed medication for depression and anxiety. A psychiatric report indicated no mental illness. Of his own volition he had attended for counselling from a voluntary organisation, for which he had paid. He produced ten character references to the effect that he was industrious and well regarded.
10. At the hearing both counsel agreed that the sentencing guidelines were of little assistance, not least because it is impossible to ascertain whether the injury fell into the category of greater harm. On any view the use of a weapon was an aggravating factor.
11. As presently constituted this court is not without experience of glassing cases and very much has in mind that the maximum sentence for an offence contrary to this section is one of five years' imprisonment.
12. There is, prior to the sentencing guidelines, no shortage of authorities on glassing cases. Whilst there is necessarily some variation, factually it is to be noted that in the following cases where glasses were broken in victims' faces and defendants pleaded guilty, sentences were passed as follows: in R v Robertson [1998] 1 Cr App R(S) 21, two-and-a-half years' imprisonment; R v McGee [2008] 2 Cr App R(S) 53, 27 months' imprisonment; R v Kent [2009] 2 Cr App R(S) 39, two-and-a-half years' imprisonment; and R v Key [2010] 1 Cr App R(S) 45, two-and-a-half years' imprisonment. In the three latter cases it could properly be argued that the facts were more serious than the present case, but in those cases the sentences were longer.
13. In the present case there are two aggravating factors, both recognised by the Sentencing Council: the injury was to a very vulnerable part of the body -- the victim might easily have lost an eye. The second factor indicating higher culpability is the use of a weapon. In addition, this was violence on licensed premises.
14. The sentence passed is exactly the sentence that both members of this court would themselves have imposed. It reflects all the mitigation and gives full credit for the plea. It reflects also the aggravating factors.
15. Accordingly, notwithstanding Mr House's most excellent efforts both in writing and orally today, this appeal is dismissed.

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