McGhee, R. v [2008] EWCA Crim 25

[2008] EWCA Crim 25Case No 200705489 A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 15 January 2008
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT
MR JUSTICE STANLEY BURNTON
MR JUSTICE WYN WILLIAMS
Between
R E G I N ACrownv
Between
EDWARD MCGHEE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr RS Gioserano appeared for Appellant
J U D G M E N T
[1]MR JUSTICE WYN WILLIAMS: On 22 August 2007, before HHJ Hoffman sitting at the Crown Court at York, the appellant pleaded guilty to an offence of wounding, contrary to section 20 of the Offences Against The Person Act 1861. On 4 October 2007, the same judge sentenced the appellant to a term of 33 months' imprisonment. The appellant appeals against that sentence with leave of the Single Judge.[2]The incident giving rise to the proceedings against the Appellant took place in a public house in Harrogate known as the Slip Inn on 12 March 2007. The public house is a small one usually frequented by regular customers. At the material time two such customers were the appellant and a man called Peter Kemp. Both were present in the public house on 12 March together with about five other people. Towards the end of the evening, at about 10pm a person, or more than one person, was in the pub with the appellant and he or they spoke to Mr Kemp. Something occurred to cause the conversation between those men to become heated. The appellant joined in with the conversation and this much is common ground that as the conversation came to an end Mr Kemp called the appellant a "prick".[3]What happened next is the subject of some confusion in the sense that the witness statements taken by the police officers did not all agree about the precise sequence of events and what the appellant did. However, the sentencing judge proceeded on this basis that Mr Kemp turned away from the appellant and began to walk back to the place where he had been having a drink and it was while he had his back turned to the appellant that he was attacked by him. The attack took this form: the appellant struck Mr Kemp at least two blows. He did that while he was holding a glass. The judge found that after the first blow had been struck the glass was broken, so that it followed that the second, and any subsequent blow, was with a broken glass. The blows which were struck with the glass were to the sides of Mr Kemp's head. Those blows caused him to go to the ground. The attack was aggravated by the fact that whilst Mr Kemp was on the ground the appellant kicked him twice.[4]As a consequence of this attack Mr Kemp suffered distinct lacerations on each side of his head. Fortunately the injuries can properly be regarded as transient, but, in the circumstances, that might easily not have been the case.[5]Following this incident the appellant was charged not with an offence of wounding, but with wounding with intent. When the indictment was drawn it was wounding with intent which was the offence that was placed upon the indictment. At a preliminary hearing, on 18 May 2007, the appellant indicated that his plea to that offence would be "not guilty", but he also indicated a willingness to plead to wounding. At that stage such a plea was not acceptable to the prosecution.[6]The same stance remained, so far as the prosecution was concerned, when a plea and directions hearing took place on 10 August and accordingly a trial was fixed. However, on the day of the trial the appellant was informed by his counsel, after discussions with the prosecution, that a plea to section 20 was acceptable to the prosecution and at that stage he entered that plea. Counsel for the appellant submits that this course was not one with which Judge Hoffman concurred. That may be correct. However, it remains the case that the discussions between counsel resulted in the course which was taken and the learned judge did nothing, in the end, to interfere with that course.[7]Mr Gioserano, counsel for the appellant, makes one essential submission and that is that a sentence of 33 months was too long for this offence. He submits, quite correctly, that the appellant was entitled to full credit for his plea of guilty and that being so he submits that the judge's starting point for his sentence was a sentence after trial in excess of four years. Counsel submits that although this was a serious offence, on any view, it was not such so as to attract a sentence which is quite close to the maximum available.[8]In making that submission he relies upon two decisions of this court. The first decision which he cites is the case of Robertson (1998) 1 C app R (S) 21. The second case is that of Singleton (1998) 1 Cr App R (S) 199. In our judgment the case of Singleton is one which may not be decided in the same way in the current sentencing climate. Counsel for the applicant conceded as much during the course of this oral application. The case of Robertson, however, does contain general views expressed by the court which we need address. Robertson involved the glassing of a man in a public house. He was drinking in the public house when he attacked a man by thrusting a beer glass into the left side of his face. The glass broke on impact and caused wounds to the victim's face. Mr Robertson pleaded guilty to unlawful wounding and the sentencing judge imposed a sentence of two-and-a-half years' imprisonment.[9]This court reduced the sentence from two-and-a-half years to two years. During the course of giving the judgment of the court, Latham J, as he then was, reviewed a number of authorities dealing with offences of section 20 and then said this:
"The position in our judgment is that, in the light of those authorities, the Court should look with some care at sentences over two years' imprisonment for an offence under section 20 to see whether in truth there is a real justification for a sentence of the length in question on the facts of the particular case."
Then he went on to refer to the personal mitigation available to the appellant in that case. He said:
"...in our judgment the mitigation, namely his plea, his undoubted remorse and the fact that he appears to have taken steps to address his alcohol abuse, do not in our view justify the conclusion that the circumstances of this case necessitate a sentence of more than two years' imprisonment."
In his sentencing remarks Judge Hoffman distinguished both Robertson and Singleton on the basis that each of those cases involved one single blow with a glass, whereas in the instant case there were at least two blows with a glass followed by two kicks to the victim while he lay on the floor. In our judgment Judge Hoffman was correct to distinguish those decisions on that basis.[10]In our view this case on its facts is significantly worse than either Robertson or Singleton. However, in the light of the more general point made by the Court in Robertson we propose to look closely at the issue as to what extent, if any, a sentence in excess of two years is justified in this case.[11]We begin our scrutiny by asking the question: what is the correct starting point after a trial for sentence for this appellant in relation to this offence? Is it something over four years, as the judge clearly thought, or is that too high? In fixing the appropriate length of course we must consider not just the circumstances of the offence, but also the personal mitigation available to the offender. The appellant is 30 years old, 29 at the time of the offence. He has no relevant previous conviction. Lest that be thought to be doing less than justice to his previous character, we should say that he has one conviction for a minor offence involving a vehicle.[12]He is hard-working, or at least was until his conviction for this offence, and he is spoken of highly in a number of written references. The pre-sentence report described the risk of his re-offending as low. He has always, as we have indicated, been prepared to plead guilty to section 20. In a short report from the prison at which he is serving his sentence it is clear that the appellant is responding well to his incarceration. That, in itself, of course, does not affect the appropriate starting point for sentence directly, but does give some insight into whether expressions of remorse, and the like, are genuinely made.[13]In our judgment, balancing the serious nature of the assault against the personal mitigation available to the appellant, and for the moment ignoring discount for guilty plea, we consider that the appropriate sentence after a trial would have been of the order of about three-and-a-half years' imprisonment. Taking that as our starting point, we think that the appropriate sentence in this case, after giving credit for the guilty plea, would have been one of 27 months.[14]We propose to quash the sentence of 33 months imprisonment and substitute one of 27 months. To that extent, this appeal is allowed.

LADY JUSTICE HALLETT: Thank you very much.