assorted wine bottles

Being young of whatever sex, having a clear record, holding down a job, striking only one blow or being drunk are not exceptional circumstances.

The appellant was sentenced to 18 months’ imprisonment on one count of unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861 (“the 1861 Act”).

Background

An altercation occurred in a Belfast nightclub in September 2019, which concluded with the appellant pushing a pint glass into the injured party’s face.  

The injured party was treated at a hospital with five stitches for a wound below her right eye which was 1-2 cm in length. She also sustained several flap wounds to her forehead, secured with paper stitches, and several cuts on her arm from glass splinters. Fortunately, the facial nerves on her face were intact, and a CT scan of her head was normal.

The appellant was arrested, cautioned and made no reply. She was then interviewed under caution and admitted to being involved in a verbal altercation but denied hitting the injured party with a pint glass. 

At arraignment in February 2021, the appellant pleaded not guilty to the sole count on the indictment of wounding with intent contrary to section 18 of the 1861 Act. 

Following consultations between counsel, the appellant was arraigned on a fresh count of wounding contrary to section 20 and the section 18 wounding with intent was “left on the books” by the prosecution.

Sentencing remarks

The judge correctly identified the following aggravating features:

  • Use of a glass as a weapon;
  • Consumption of a significant amount of alcohol; and
  • The impact on the victim.

The judge accepted the defence identification of mitigating factors:

  • No previous convictions;
  • Single blow; and
  • Has exhibited remorse.

In her sentencing remarks the judge noted that, in terms of sentencing guidelines, the case of R v Goodwin [2011] EWCA Crim 2518, “has been treated for some years as something of an authority in cases such as this.” She then observed that the court’s view is that section 20 offences, using a weapon, will “generally” require deterrent sentences and that the same should only be suspended in exceptional circumstances. 

“Sadly”, the judge said, “I can find no such exceptional circumstances …and have concluded that had the defendant contested the charge and been convicted …the minimum term of imprisonment she would have imposed would have been …two and a half years. Allowing appropriate discount for the plea and the other issues raised by the defence, I am prepared to reduce that sentence to one of 18 months imprisonment, but it is an immediate custodial sentence.”

Grounds of Appeal

Was the judge wrong in principle in finding that the offence called for a deterrent sentence?

The Criminal Justice (Northern Ireland) Order 1996 sought to amend The Treatment of Offenders Act (Northern Ireland) 1968 and create a requirement that the judge find exceptional circumstances before imposing a suspended sentence upon a defendant.

Although this amendment has never been brought into force, the Court of Appeal has nevertheless held that where a court would normally be required to pass an immediate custodial sentence (for example, because of the need for deterrence, or to mark society’s condemnation of certain behaviour), then it should carefully enquire into the circumstances of the offence to see whether a suspended sentence could be justified on the basis of exceptional circumstances. 

Where a deterrent sentence is required, previous good character and circumstances of individual personal mitigation are of comparatively little weight. Secondly, although in this jurisdiction there is no statutory requirement to find exceptional circumstances before suspending a sentence of imprisonment, where a deterrent sentence is imposed, it should only be suspended in highly exceptional circumstances as a matter of good sentencing policy.

DPP’s Ref (Nos 13, 14, and 15 of 2013) (R v McKeown and others) [2013] NICA 63 per Morgan LCJ at paragraph [11]

The use of gratuitous violence by offenders is a persistent feature of many of the cases that come before the criminal courts. Those who injure others by glassing them in the face will suffer condign punishment. The fact that offenders are young or female is no reason why they should not be punished severely when they behave in such a vicious and abhorrent manner. 

Manifestly excessive?

It is not suggested that the trial judge erred in the identification of the aggravating or mitigating factors. However, Goodwin has to be approached with a degree of caution not least because the prosecution expressly disavowed reliance on the English Court of Appeal decisions which were based on the Definitive Guidelines to contend for prescribed starting points or sentencing ranges in this jurisdiction. Moreover, in Goodwin, the appellant had pleaded guilty to grievous bodily harm where the injured party was permanently blinded in one eye. 

  • Whilst the injury in the present case was fortuitously much less severe; it was nonetheless significant. It is obvious that the use of a pint glass as a weapon, as well as having a bearing on whether a deterrent sentence was required in principle, was also clearly an aggravating factor to be taken into account in setting the appropriate starting point. 
  • The second aggravating factor was the impact on the injured party, who suffered a degree of permanent facial scarring from this assault. Both the scarring and the psychological impact of the assault continue to impact her everyday life.
  • A third aggravating factor was the alcohol consumed by the appellant, described in the pre-sentence report as a “significant amount” and in a medical report as “drinking heavily”.

The remorse as expressed by the appellant’s guilty plea and in the reports must, however, be set against the background that in interview on the following day, she positively denied having assaulted anyone with a glass and claimed she went into the men’s toilets because she thought ‘they’ were going to attack her. 

The appellant advanced the fact that she had been the victim of a different “glassing” incident only two years previously as a reason for extending sympathy towards her, and which might explain why she lashed out as she did. The Court of Appeal agreed with the prosecution that it could also be said that someone who had been subject to this kind of attack in the past would have had more reason than the average person to appreciate how dangerous striking another person with a glass could be.

They considered that the starting point of two and a half years after a contest, in this case, is too high having regard to the aggravating and mitigating factor, bearing in mind that “…in cases requiring a deterrent sentence personal mitigation carries comparatively little weight.”

But having for reasons of deterrence and condign punishment settled on a custodial option as the only appropriate outcome, the judge still has to arrive at a just and proportionate custodial term that reflects all the relevant elements of the case. It is important to remember that immediate imprisonment will follow from behaviour of this kind is in itself part of the deterrence the court seeks to impose. 

The court should avoid the risk of imposing unduly long sentences where they have already directed immediate custody to reflect the seriousness of the conduct they wish to deter. In the circumstances of this case, an appropriate starting point after a contest taking account of the aggravating and mitigating factors, save for the plea, would have been around 18 months. 

Conclusion

Offenders who use gratuitous violence by injuring others by glassing them in the face must expect stiff prison terms. Drink is no excuse. On the contrary it is, as these courts have repeatedly said, an aggravating feature. The fact that offenders are young or female is no reason why they should not be punished severely for such conduct. 

…Part of the function of the court is to protect the public and one of the means by which we attempt to achieve that goal is by imposing deterrent periods of imprisonment particularly for offences of the kind committed in this case. It is unrealistic to contend that a deterrent sentence was not justified and that the court should have instead imposed a suspended sentence or probation. We emphasise that offences of section 20 wounding by glassing in the face will generally require deterrent custodial sentences. Such sentences should only be suspended where the court finds exceptional circumstances. Being young of whatever sex, having a clear record, holding down a job, striking only one blow or being drunk are not exceptional circumstances.  

(emphasis added)

The Court of Appeal allowed a one-third reduction to take account of her early plea imposing an overall sentence of one year’s imprisonment divided equally between custody and licence. 

Case Report: Wilson, R. v [2021] NICA 38 written by Paul Sullivan FRSA

By Paul Sullivan FRSA

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