Kear, R. v

In sentencing for unlawful wounding by use of a glass, the court may treat the use of the glass as a weapon, injury to the face with a risk of eye injury, and violence in licensed premises as substantial aggravating features. Those features may justify a custodial sentence notwithstanding a guilty plea, personal mitigation and a spontaneous overreaction to perceived aggression. The sentence must reflect all mitigation and full credit for the plea, while remaining proportionate to the statutory maximum under the Offences against the Person Act 1861.

The appellant pleaded guilty at Leicester Crown Court to unlawful wounding contrary to section 20 of the Offences against the Person Act 1861. He had struck the victim once in the face while holding a pint glass. The glass shattered and caused a laceration above the victim’s eye requiring eleven sutures, together with lesser injuries.

He was sentenced to two years’ imprisonment, with 69 days of electronically monitored curfew to count towards the sentence. He appealed by leave of the single judge, contending that the blow was a spontaneous overreaction to the victim’s apparently aggressive approach and relying on his plea and personal mitigation. The issue was whether the sentence was excessive.

Appeal dismissed. The two-year sentence was the sentence that each member of the court would have imposed.

1. The court proceeded on the appellant’s factual basis. He had not picked up the glass to use as a weapon. He already held it when, after stepping away from a developing confrontation, he reacted to the victim’s apparently aggressive approach by striking one blow. That context, his early guilty plea and his personal mitigation were fully material to sentence.

2. The court nevertheless identified serious aggravation. The pint glass was used as a weapon. The injury was to a particularly vulnerable part of the body, and the victim might easily have lost an eye. The violence also occurred in licensed premises. The court noted that the maximum sentence for the section 20 offence under the Offences against the Person Act 1861 was five years’ imprisonment.

3. Comparable glassing cases supported the conclusion that the sentence was not excessive. In R v Robertson [1998] 1 Cr App R(S) 21, R v McGee [2008] 2 Cr App R(S) 53, R v Kent [2009] 2 Cr App R(S) 39 and R v Key [2010] 1 Cr App R(S) 45, broken glasses had been used against victims’ faces and custodial sentences of between 27 months and two-and-a-half years had been imposed following guilty pleas. The latter three cases could properly be regarded as factually more serious, but their sentences were longer.

4. The sentence reflected the mitigation and gave full credit for the plea, while properly recognising the aggravating factors. No reduction was warranted.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against sentence.
• Leicester Crown Court: on 16 June 2011 the appellant pleaded guilty to unlawful wounding contrary to section 20 of the Offences against the Person Act 1861; on 15 July 2011 he was sentenced to two years’ imprisonment.