No: 200400408/A8 
Neutral Citation Number: [2004] EWCA Crim 1625
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 17th May 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE GRIGSON 

MR JUSTICE ANDREW SMITH 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 5 OF 2004    
 
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MR H DAVIES appeared on behalf of the ATTORNEY GENERAL
MR J ROSE appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	THE VICE PRESIDENT:  The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient. We grant leave.
2.	The offender was born in November 1980 and so he is 23 years of age.  On 29th November 2003 he was convicted by the jury of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861.  On 19th December 2003 he was sentenced by His Honour Judge McIntyre, who had presided at the trial (which, somewhat surprisingly, apparently lasted two weeks), at the Reading Crown Court.  He sentenced him to 30 months' imprisonment.
3.	In summary, the offender had witnessed and helped to promote a fracas between two other groups of young men at a public carnival on the night of 8th June 2002. Racist abuse was directed at the offender's friend, Gilzean, by a friend of the young man who became the victim.  A fight developed between the victim and Gilzean which resulted in a cut above the victim's left eye.  The offender left the scene but returned about 10 minutes later.  He broke a bottle, thrust it into the right-hand side of the victim's face, in a single jabbing motion, and thereby caused 10 separate lacerations around the eye which required 17 stitches.
4.	In a little more detail, the carnival in question was at Maidenhead and the offender attended with male and female friends on the night of 8th June.  The offender and his friend, Gilzean, are black.
5.	The victim, Tom Palmer, was 18.  He and a friend who was with him called Gill are white.  The offender and the victim had never met before.  There was a good deal of tension at the carnival between various people.  The offender admitted that, at one stage, he had stood on a wall promoting confrontation by saying to others such things as "if you're going to hit him, then hit him."
6.	The situation deteriorated so that there was the violence to which we have already referred, which involved Gill and Gilzean.  The sentencing judge accepted that there had been racial abuse directed at the offender's party by one of the victim's party.  The offender, when he came back, had taken a glass bottle from a bin. He smashed it.  He approached the victim with the bottle behind his back. He made verbal threats.  He thrust the bottle into the right side of the victim's face in a single jabbing motion and said "you're messing with my bro".
7.	A variety of witnesses said that the victim would have had little or no warning of the attack. The offender ran away and was arrested with other members of his group a little after 10 o'clock the same evening.
8.	There were, as we have said, 10 separate lacerations in the vicinity of the right eye, requiring a total of 17 stitches and resulting in some not particularly significant scarring.
9.	In interview by the police the offender said that responsibility for the assault belonged not with him but with his friend, Gilzean.  Gilzean was indeed charged in January 2003 because it was found, on forensic examination, that there was the victim's blood on Gilzean's jacket.  At that time, the offender was told that, on the material then available, he was not going to be prosecuted.  But he was charged in March 2003 after identification evidence as to the assailant had been re-examined.  The trial resulted, as we have said, in the conviction of the offender and also the acquittal of Gilzean.
10.	On behalf of the Attorney-General, Mr Davies submits that there are three aggravating features. First, the assault was the consequence of retribution. Secondly, there had been a deliberate arming of himself by the offender with the bottle which he smashed.  Thirdly, the bottle was used on the victim's face.
11.	Mr Davies draws attention to three mitigating features:  first, the racist abuse which preceded the assault; secondly, the good character of the offender, in that he has no previous convictions; and, thirdly, that he was acting out of character, never normally being a young man prone to violence.
12.	Mr Davies drew attention to four authorities, Attorney-General Reference No 25 of 2002 [2003] 1 Cr App R(S) 28, Attorney-General's Reference No 24 of 1998 [1999] 1 Cr App R(S) 278, Attorney-General Reference No 41 of 1994 16 Cr App R(S) 792 and Attorney-General's Reference No 20 of 1993 15 Cr App R(S) 797.  In the light of those authorities Mr Davies submits that a sentence of 30 months for such an offence was unduly lenient, bearing in mind the aggravating features to which reference has been made. It is submitted that the judge's sentence failed adequately to reflect the gravity of the offence, the need to deter others and public concern about offences of this kind.
13.	On behalf of the offender, Mr Rose accepts that the sentence was a lenient one but, he submits, not unduly lenient. He submits that the range of sentence for section 18 offences is between two-and-a-half and 5 years' imprisonment.  We do not accept that, particularly following a trial.
14.	The learned judge was clearly, as his sentencing remarks  show, influenced by the element of racial abuse to which we have referred.  That, submits Mr Rose, is a provocative feature, not found in many of the authorities.  It has to be pointed out in that regard, however, that it was not the victim who delivered himself of racial abuse.
15.	Mr Rose accepted that there are in this case the aggravating features to which Mr Davies drew attention. But he submits the circumstances of personal mitigation are particularly strong.  The offender not only is of good character, with a good work record, he also has qualifications which he has achieved at school. He has support of a number of referees.  Mr Rose also refers to the historical feature to which attention has already been drawn, namely that there was a period of some 2 or 3 months when the offender believed that he might not be prosecuted.  But Mr Rose accepts this was not one of those cases in which he had been plainly told that he never would be prosecuted.
16.	Mr Rose drew attention to Attorney-General's Reference No 9 of 1995 [1996] 1 Cr App R(S) 116 where, in a judgment of this Court given by Lord Chief Justice Taylor, a sentence of 18 months was increased to three-and-a-half years following a trial.
17.	Finally, Mr Rose relies on the element of double jeopardy, which is inherent in the second sentencing process by this Court in all Attorney-General's Reference cases.
18.	We take all of these considerations into account.  Having regard to the aggravating and mitigating features which have been sufficiently identified, we would have expected, in the court below, a sentence of at least four-and-a-half years' imprisonment.  It follows that this sentence of 30 months was unduly lenient.  Taking double jeopardy into account, the sentence which we substitute in place of the 30 months is one of three-and-a-half years' imprisonment.