No: 200601370/A1 
Neutral Citation Number: [2006] EWCA Crim 2019
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 7th July 2006
 
B E F O R E:

MR JUSTICE FULFORD 

THE RECORDER OF NEWCASTLE
(Sitting as a Judge of the Court of Appeal Criminal Division) 

- - - - - - -
R E G I N A 

-v- 

KELLY BATES 
 
- - - - - - - 
Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR J CARMICHAEL appeared on behalf of the APPELLANT
 - - - - - - -
J U D G M E N T

1.	The Recorder of Newcastle: On 16th January 2006, at the Crown Court at Blackfriars before His Honour Judge Samuels QC, this applicant pleaded guilty on re-arraignment to one count of wounding with intent to cause grievous bodily harm.  She was sentenced by Judge Samuels on 17th February 2006 to three years' imprisonment.
2.	The facts of the offence were that on the evening of 16th September 2005 the complainant, Mr Sayer, had been out drinking with two of his friends in Fulham.  Shortly after midnight they were outside a nightclub and he and his friends decided to find a taxi to take them home.  A group, which comprised two females, one of whom was the applicant, and a male, were walking towards Mr Sayer's group along the crowded pavement.  One of that group said to Mr Sayer's group, "Get the fuck out of the way."  Someone from Mr Sayer's group made a comment objecting to being spoken to in that way and the incident degenerated into further argument.  In the course of that argument the applicant was the main aggressor.  She then pulled a bottle out of her jacket pocket, smashed it against some railings and swiped it across Mr Sayer's face.  She tried to slash him again, but a nightclub doorman, who was nearby, intervened and detained her.  The police arrived and she was arrested.  The applicant said this:
"Yes, I did it, but only because he hit me first and was abusing my friend."
3.	Mr Sayer was taken to hospital where he was found to have a 7 cm laceration to the left side of his face.  That had severed the temporal branch of his facial nerve.  Sutures were required.  He has been left with a permanent inability to raise his eyebrows on his left side and a scar.  We have seen a photograph of that very significant injury.
4.	When she was interviewed, the applicant said that she had been out with friends and had something to drink, but was not drunk.  She said there was a confrontation between the two groups and she was hit by someone so she retaliated.
5.	When he passed sentence, the judge said, amongst other things:
"This type of incident is commonly known as glassing.  It is capable of producing wanton and in all too many cases really serious injury.  The real vice of your action is that you could so easily have blinded your victim or even if that bottle had entered his neck, killed him.  As it is, he is left ... with a lifelong scar on his face and some facial paralysis ..."
6.	The applicant was still a young woman and the mother of two children.  It was accepted she had been the victim of domestic violence and had had a most disturbed upbringing.  Following the breakdown of her own relationship, she had suffered significant mental illness.  Her children had been removed from her care and were now being looked after by her mother, although she still had regular contact with them.  She had demonstrated remorse for the injuries that she had caused.  All those matters were taken into account, as was the plea, but it was clear from the authorities, said the judge, that offences such as this demanded substantial sentences of immediate imprisonment.  He went on to impose the three year sentence to which we have referred.
7.	In refusing leave the single judge said this:
"There was plainly a section 18, not a section 20 case.  The judge was nevertheless contemplating a non-custodial sentence in view of your personal background and medical history, but at no time did he say that he would pass such a sentence.  Indeed when the Crown felt unable to state in advance whether they might ask the Attorney General to consider whether a non-custodial sentence was unduly lenient, the judge was neither asked for nor gave an indication of sentence.  The sentence of three years' imprisonment for such a deliberate assault was not excessive."
8.	The applicant now renews her application for leave to appeal against sentence.  The grounds of appeal are very brief and to the point.  In all the circumstances, and in particular given that the judge had indicated a non-custodial sentence would follow, the sentence was both manifestly excessive and wrong in law.
9.	The one ground alludes to what had taken place before Judge Samuels at previous hearings.  We have been provided with transcripts of the exchanges that had taken place between the judge and Mr Carmichael, counsel for the applicant, on 15th November 2005, 9th January 2006 and 16th January when the applicant's counsel asked for the applicant to be rearraigned.  At this stage it is not necessary to comment on what transpired at those hearings, save to say that we are surprised that they ever took place at all.  
10.	The question we have to ask ourselves is whether it is arguable that the applicant might harbour a legitimate sense of grievance that, in the light of the tenor of those exchanges, she was sentenced to a term of imprisonment at all, or to a term of imprisonment as long as three years.  We have concluded that the point is arguable.  We therefore grant the application and proceed to the full hearing of the appeal.
11.	It is conceded by Mr Carmichael that this sentence was not manifestly excessive.  In our judgment, it plainly was not, and, but for the circumstances to which we are about to refer, we would be unanimously of the view that this was a perfectly appropriate sentence for an offence as serious as this with the consequences that befell Mr Sayer.  The point that we have to consider is whether a fair minded member of the public, fully informed as to what had gone on at those previous hearings, would not conclude that there had been something wrong with the administration of justice.  We also consider whether the appellant might have a legitimate sense of grievance that she received the sentence that she did.  Mr Carmichael roundly puts his point in this way.  She had had a promise of a community order.  She did not receive a community order.  She received a sentence of imprisonment and that is plainly manifestly excessive and, indeed, unfair.
12.	We have already mentioned the three hearings that took place before Judge Samuels on 15th November 2005, 9th January 2006 and 16th January 2006, when the appellant was rearraigned and pleaded guilty to the section 18 count.
13.	It is now necessary briefly to refer to what had transpired in those three hearings.  On 15th November the judge in a slightly encoded way focused on the applicant's circumstances and the possibility of the Crown being willing to accept a plea to section 20 wounding.  The Crown indicated that they needed more material in order for a sympathetic course to be considered given the seriousness of the injuries.  By the end of that hearing, we conclude, it is impossible to say that any kind of firm indication, indeed any indication at all, had been given.  
14.	On 9th January the court, in the view of this court, incorrectly focused on the possible reaction of the Crown to a non-custodial sentence.  The judge also made one particularly trenchant remark, namely:
" ... she is a vulnerable lady with significant social and mental health problems which could only be significantly exacerbated by the imposition of a custodial sentence." 
15.	It is unfortunate that on 16th January the court again touched on (indeed delved into) the subject of whether a non-custodial sentence would lead to a reference by the Attorney General as being an unduly lenient sentence.  In our view, a judge should always pass what he or she considers to be the right sentence, rather than a sentence that is guaranteed not to be the subject of the reference (even if a reference could have unfortunate results for the accused)
16.	Moreover, on this occasion, that is on 16th January, the judge again appeared to reveal his own views of the merits of the case when he stated at the beginning of the hearing that the Crown had not apparently paid sufficient attention to the medical evidence which tended to demonstrate the appellant's "background, personal problems and significant mental health issues".
17.	By the time the plea to section 18 was entered, the judge had, in our judgment, created the clear impression that if the prosecution indicated the Attorney General would not refer a non-custodial disposal then that would be his preferred sentence, hence Mr Carmichael's remark:
"I have been listening very carefully ..." 
(Page 12B)
18.	Mr Carmichael does, however, observe at page 13A:
" ... and of course I am not saying that anybody has bound themselves in any way in this courtroom ..."
19.	That history leads to us the following conclusions.  First, the judge had clearly indicated on the basis of the material before him at the stage that the plea was entered that if he was unfettered by the risk of an appeal he would not have imprisoned this appellant.  Second, he had, at the very least, created the clear impression that if custody were necessary it should not in his view be a substantial term.  Third, that the appellant had conceded, prior to entering her plea, that all of the sentencing options remained open.
20.	We have already deprecated the practice the judge followed in this case.  In the view of this court, judges should never adopt this course however well meaning they might be.  What has happened in this case clearly demonstrates the dangers that can befall.
21.	Mr Carmichael submits that there had, in effect, been a clear promise of a community order to this appellant.  Such was his view of the situation that he thought it unnecessary to attend on 17th February when the sentence was passed and his responsibilities were delegated to a junior member of chambers.  He was firmly of the view then that there had been, to use the expression, "a done deal".  Here, in our view, the appellant was left with the clear impression (the legitimate expectation) that the choice in the judge's mind was between either a non-custodial sentence disposal or a short sentence, because he had demonstrated the extent to which he was impressed by her personal and highly unfortunate circumstances.  The court had indicated that whatever sentence was passed the appellant's particular mitigation would be one of the determining factors.  Instead of sentencing in accordance with that expectation, and indeed without warning, he passed a condign sentence that reflected the seriousness of the offence rather than the appellant's history and current situation.
22.	We emphasise, again, that this court, apart from the circumstances of the three previous hearings to which we have alluded, would have upheld a sentence of three years' imprisonment.  But it was, in our view, wrong in principle in these very particular circumstances for the judge to take the course that he did.  We therefore have no choice but to intervene to rectify what we consider, and what any fair minded by-stander would consider, was an injustice to this appellant.  Accordingly, because of the circumstances that developed during the sentencing process we have no choice but to quash the sentence of three years' imprisonment and to substitute a sentence that would permit the appellant's immediate release.  We understand that she has served something in the order of four months already.  To give effect to our intention we would impose a sentence of eight months' imprisonment.  To that extent this appeal is allowed. 
23.	MR JUSTICE FULFORD:  We are very grateful to you, Mr Carmichael.
24.	MR CARMICHAEL:  I have a personal request, that there be a representation order granted.
25.	MR JUSTICE FULFORD:  Yes, certainly.  There will be a nil recovery of defence costs.