Case No: 200305055A7
Neutral Citation Number:  [2003] EWCA Crim 3010
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 4 November 2003

Before :

LORD JUSTICE POTTER
MR JUSTICE CRESSWELL
and 
MR JUSTICE DAVIS
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REFERENCE BY THE ATTORNEY GENERAL UNDER

S.36 CRIMINAL JUSTICE ACT 1988

ATTORNEY GENERAL’S REFERENCE NO 88 OF 2002

(CARL WESTON GRIFFITHS)

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Mr Anthony Orchard appeared on behalf of the Attorney General
Mr Philip Gibbs appeared on behalf of the Offender

Hearing dates : 21.10.03
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JUDGMENT 

Lord Justice Potter: 
1.	This is an application by the Attorney General for leave of the court under s.36 of the Criminal Justice Act 1988 to refer to the court as unduly lenient a sentence passed in respect of an offence under s.18 of the Offences Against the Person Act 1861.  We grant the necessary leave.
2.	The offender is Carl Weston Griffiths, who is aged 19, having been born on 4 July 1984.
3.	At about 10.50pm on 18 April 2003 the offender attacked and wounded James Hilton (“the victim”) by biting off a large part of his left ear lobe.  The offender was arrested later the same evening.  
4.	On 6 August 2003, when the case was listed for trial in the Leicester Crown Court, the offender pleaded guilty to unlawfully and maliciously wounding the victim with intent to do him grievous bodily harm.  He was sentenced to two years detention in a Young Offender Institution by Mr Christopher Goodchild sitting as a Recorder.  An earlier sentence imposing a 220-hour Community Punishment Order for offences of assaulting a police officer, threatening behaviour and criminal damage was revoked when he was sentenced as described. 
5.	The short facts of the matter were as follows.  On the evening of Friday 18 April 2003, the victim, who was aged 23, met a number of friends in Oakham.  They were drinking in The Griffin Inn which they left at 10.50pm.  As the victim was walking away, he suddenly felt somebody jump onto his back.  He initially thought it was one of his friends.  He was mistaken, because it was the offender who, according to witnesses, had been spoiling for a fight earlier.  The victim and the offender did not know each other.  The offender bit into the victim’s left ear, biting off most of his ear lobe.  This understandably caused the victim great pain and he dropped his shoulder in an attempt to dislodge his attacker.  The victim fell to the ground with the offender underneath him.  A struggle ensued.  As the victim fell he hit his head on the road.  The offender then bit the victim on the left side of his rib cage.  
6.	Assisted by his friends, the victim tried to get away.  The offender was heard to say “How does your ear hole feel after that?”.  He then ran off, spitting towards a drain as he did so.  The police attended and were able to retrieve the ear lobe from the area of the drain and the victim was taken to hospital where he was treated.  He had lost about 2-3 cms of his ear lobe; he had a large bite mark on his left rib area where the skin had been penetrated; he had suffered grazes and bruises to his knees, elbows, forehead and back.  The surgeon on duty was unable to reattach the ear lobe and the victim was referred to a plastic surgeon.  Fortunately, he was able to achieve a very good cosmetic result, as photographs before us demonstrate.  Viewed from its own side, the injury to the ear is not evident, nor the fact that a large part of the ear lobe is missing.
7.	The offender was located by police in Oakham at 1.20 am the following morning.  He was arrested and interviewed.  He admitted having a fight but stated, contrary to the subsequent evidence of witnesses, that he was punched first and retaliated in self-defence.  He was charged and remanded on bail.  
8.	The case was listed for trial on 6 August 2003.  Before the jury was sworn, counsel for the offender sought an indication as to sentence from the Recorder in open court.  We have been informed by counsel for the offender that he simply asked for an indication whether the offender would become a long-term prisoner if he pleaded guilty.  It appears that, at this stage, the Recorder acted under a misapprehension as to his sentencing powers.  He indicated that, if the offender pleaded guilty, he would sentence him to 18 months.  However, it later transpired that the judge had thought that, because of the offender’s age, the judge’s powers were limited to imposing a Detention and Training Order limited to a maximum of 24 months.  Thus, after credit for a plea of guilty, the appropriate sentence would be 18 months.  However, this misapprehension was not made clear at the time.  
9.	Following that indication, counsel for the offender asked the judge to rise whilst instructions were taken.  Shortly thereafter, counsel for the crown invited the judge to return to court as he was unhappy with the indication given.  When the Recorder returned, it became clear that he had been labouring under a misapprehension and, having discussed various aspects of the case, he indicated that if the offender pleaded guilty he would impose a sentence of 2 years in a Young Offender’s Institution.  Counsel for the crown indicated that if such a sentence was passed he would refer the matter to the Attorney General for consideration as to whether a reference should be made.  
10.	The mitigation advanced was very brief.  Having obtained the indication which he did, counsel for the offender has frankly informed us that he considered he had done as well as he could expect and consequently made a very short mitigation in general terms expressing regret for the offender’s conduct and sympathy to the victim.
11.	For similar reasons, counsel for the offender did not ask for a pre-sentence report prior to sentence.  Nor did the judge require one.  
12.	The offender’s criminal record even at the age of 19 was extensive.  He had 22 convictions recorded against him, one of which was for an offence of wounding under s.20 of the 1861 Act, and two were for assault occasioning actual bodily harm under s.47 of the 1861 Act.  There were also offences of common assault, threatening behaviour, assaulting a police officer and affray.  
13.	In passing sentence, the judge outlined the aggravating features as the offender’s bad record and the fact that he had started the fight in the street.  The judge identified the mitigating factors as the late plea of guilty, the offender’s age, the fact that the injury to the victim was not grave or life-threatening and the fact that the offender did not use any weapon.
14.	So far as this court is concerned, the aggravating features which appear to be present are first, that the offender committed an unprovoked attack; second, that he bit his victim in a manner which has been compared on occasions to the use of pincers as a weapon; third, the offender’s bad criminal record for offences of violence, albeit of a lesser variety than in the instant case; finally, the offence occurred during the currency of a Community Punishment Order.  In this last respect however, when revoking the Order, the judge imposed no extra punishment.
15.	The mitigating factors were essentially the plea of guilty, albeit entered late, and the youth of the offender.
16.	In submitting that the sentence was too lenient, counsel for the Attorney General has relied upon a number of authorities, the most helpful of which are as follows.
17.	In Attorney General’s Reference Nos 59, 60 and 63 of1998 (Goodwin and others) [1999] 2 Cr App R (S) 128, this court considered a ‘glassing’ offence by a youth of 18 with a less violent record than that of this offender.  In throwing an unbroken glass into the face of the victim, the defendant had caused substantial permanent facial scarring.  The court stated that a proper sentence on conviction would have been 4 years’ detention, 3 years being appropriate on a plea of guilty.
18.	In Attorney General’s Reference No 7 of 1994 (Chadwick) [1995] 16 Cr App R (S) 300, the court considered a case of an injury caused by biting which was more serious than the instant case.  The defendant, aged 28, had attacked his victim unprovoked for the second time within two weeks, biting off part of his thumb as the victim defended himself from an attempt by his attacker to bite off his nose.  The court said a sentence of 5 years on conviction was appropriate, but substituted a sentence of 4 years for the 2 years originally imposed having taken into account the factor of ‘double jeopardy’.  
19.	In R v Alleyn [1995] 16 Cr App R (S) 506, in a case comparable to the instant case, the court considered an appeal by the defendant against a sentence of 4 years imposed on conviction of a section 18 offence for biting off part of the victim’s ear.  The court stated that it was “wholly unpersuaded” that the sentence was excessive.  
20.	In Attorney General’s Reference No 29 of 2001 Katriona Spring) [2002] 1 Cr App R (S) 60 at p.253 [2001] EWCA Crim 1491 the court considered the case of a female defendant of clean character who had, in circumstances of strong mitigation, bitten off the tip of another woman’s nose in the course of a fight.  The court upheld the sentence of 18 month’s imposed upon her following her plea of not guilty in view of the element of double jeopardy, while stating that a sentence of 2½ years was the minimum appropriate.
21.	In making his submissions to us, counsel for the Attorney General has laid emphasis upon the criminal record of the offender which he submits should have led the judge to take a particularly serious view of the case.  He has submitted that the judge should have taken the view that the offender represented a danger to the public which should have been reflected in a sentence at the top end of the scale.  He so submitted, particularly in the light of a pre-sentence report obtained by the Registrar for the purpose of assisting the court at this hearing.  The author of the report made clear that, since being in custody, the offender had taken steps to start to address his acknowledged proneness to violence when having drunk to excess.  The author also referred to the offender’s genuine shock at the injuries he had caused.  However, he observed that 
“given [the offender’s] nature and rate of offending, which is mainly violence, I assess the risk of re-offending as medium and for this risk to reduce [the offender’s] needs to undertake intensive work on his poor thinking skills, use of alcohol and anger management.  At the current time [the offender] is expressing good motivation and hopefully this can be sustained throughout the sentence.”
22.	However, counsel for the Attorney General has not suggested that the judge should have regarded the offender as a candidate for an extended sentence.  It is clear that the writer of the report based his risk-assessment simply on the nature and rate of the offender’s offending, as to which the judge was fully informed from the details of the offender’s criminal record which were before him.
23.	Having considered the details of the case and the authorities to which we have been referred, it is our view that the appropriate sentence for this offence would have been 4½ years upon conviction with a discount for the offender’s late plea of no more than one year.  Thus we consider that the lowest appropriate sentence would have been one of 3½ years in a Young Offender’s Institution.  
24.	That said, however, we do not propose to disturb the sentence imposed.  That is not simply because of the element of double jeopardy.  The unfortunate fact is that, in this exceptional case, the offender received in open court a clear indication of the sentence which he would face prior to his change of plea and he was plainly influenced by it.  In this respect, counsel for the Attorney General has made clear to us that counsel for the prosecution contributed to the dialogue on sentence and indicated to the judge that if a sentence of no more than 2 years was passed he would refer the matter to the Attorney General for consideration as to whether a reference should be made.  Despite this highly unusual feature, it does not seem to us appropriate in all the circumstances to increase the sentence in this case.