2017/03650/A3
Neutral Citation Number: [2018] EWCA Crim 333
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  9th  February  2018

B e f o r e:
LORD  JUSTICE  DAVIS

MR  JUSTICE  NICOL

and

THE  COMMON  SERJEANT
His Honour Judge Marks QC)
 (Sitting as a Judge of the Court of Appeal Criminal Division)

- - - - - - - - - - - - - - - - - -

R E G I N A
 
- v -

GEMMA  LOUISE  BANKS

- - - - - - - - - - - - - - - - - -

Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - -

Mr P Maggs appeared on behalf of the Appellant

- - - - - - - - - - - - - - - - - -

J U D G M E N T
Friday  9th  February  2018

LORD JUSTICE DAVIS:  I shall ask Mr Justice Nicol to give the judgment of the court.

MR JUSTICE NICOL:
1.  This is an appeal against sentence brought with the leave of the single judge.

2.  On 21st April 2017, following a trial in the Crown Court at Reading before His Honour Judge Stephen John and a jury, the appellant was convicted of wounding with intent, contrary to section 18 of the Offences against the Person Act 1861.  A second count of wounding, contrary to section 20 of the 1861 Act, was added to the indictment as count 2.  The appellant was willing to plead guilty to count 2 at trial, but that was not acceptable to the prosecution.  In due course, she was convicted of the more serious offence.  Because she was convicted of the more serious offence, no verdict was entered on count 2.

3.  On 21st July 2017, she was sentenced by Judge John to twelve years' imprisonment.  A community order, which had been imposed on 14th July 2016, was revoked.

4.  The facts of the offence were as follows.  The appellant had been in a short relationship with the victim, Craig Cummersdale.  They shared a flat together.  They were both drinkers.  At home on 22nd October 2016 they had a row.  The appellant had been holding a vodka bottle.  She used it in a repeated and frenzied attack upon Mr Cummersdale.  The appellant deliberately struck Mr Cummersdale twice to the head with the bottle with sufficient force that the bottle broke.  Mr Cummersdale fled, but was pursued by the appellant.  She then slashed at him repeatedly with pieces of broken glass in the confined space of the communal lift.

5.  When she was cross-examined at trial, the appellant said: "I can give as good I get with partners.  That is the same when I've been drinking.  I told deliberate lies about the amount I'd had to drink.  I was drunk at the time, but was capable of walking.  I was not thinking straight because of the amount I'd had to drink.  I had drunk a fair bit, but would not say I was crazy drunk".

6.  In relation to Mr Cummersdale, the appellant said: "He had not touched me before I hit him with the bottle.  He had no weapon, just an open hand.  I had quite some force behind me when I struck him with the bottle and there was no lawful reason for me to hit him …"

7.  Mr Cummersdale was treated at hospital for five injuries.  One on the lower lip was about 4cm in length and required two sutures.  The second and third wounds were on the right of the forehead, in close proximity to each other.  Those required Steristrips and skin glue.  Fourthly, there was a vertical wound behind the ear and on the flesh of the ear, about 5cm long.  Fifthly, there was a wound centrally located to the back of the left hand, which required skin glue.  Shards of glass from the broken bottle were used to cause the injury to the back of the complainant's ear, close to his neck, when he had been trying to escape and had pressed the button for the lift.  The injury to his mouth was inflicted whilst the appellant had been waving around a jagged weapon in the lift and Mr Cummersdale had attempted to flee from the scene.

8.  The judge had a Victim Impact Statement from Mr Cummersdale.  He said that he had a scar above his eyebrow, which regularly reminded him of the attack, which "had done my head in".

9.  The appellant was aged 30 at the time of sentence.  She had one previous conviction for an offence of battery.  She had punched her then partner several times on his face and back, causing bleeding and bruising.  For that offence she had been sentenced to a community order for twelve months on 14th July 2016.  The community order was in force when the index offence was committed on 22nd October 2016.  

10.  In the pre-sentence report, which was also available to the judge, the appellant was reported as saying that she "felt bad" about the assault, having seen the CCTV footage.  Whilst she expressed shock at her conduct whilst intoxicated, she was not prepared to stop taking alcohol.  She appeared indifferent and resigned to a lengthy sentence.  She had done little to engage with the community order.  The probation officer reported that the appellant had been the victim of domestic abuse in the past from previous partners.  She was not in work, but received employment support allowance, most of which was spent on alcohol.  She had begun to drink at the age of about 18, and did so daily.  She consumed an average of two to three litres of spirits per day.  The probation officer considered that her risk of re-offending was low, but would increase if she resumed alcohol and became involved in a relationship.  The risk of serious harm, in the probation officer's view, was medium.

11.  The court also had a psychological report from Susan van Scoyoc, a consultant psychologist, which was dated 19th July 2017.  It was Ms van Scoyoc's opinion that the appellant (1) was a vulnerable individual who had experienced bullying since childhood; (2) functioned intellectually in the borderline range, just above that usually recognised as a learning disability; (3) had felt a failure and different throughout her childhood because of this difference; (4) was vulnerable to being targeted by older, controlling men due to her borderline functioning; (5) had used alcohol to numb herself from "a difficult emotional state of feeling different and used"; (6) without alcohol was compliant in nature and this had added to her vulnerability to be manipulated; and (7) felt anxious about the forthcoming sentence hearing and about the likely length of sentence.  Ms van Scoyoc stated that the appellant had acknowledged that, whilst intoxicated, her behaviour had been out of control and aggressive, and that the appellant had been alcohol-free for five months.

12.  In passing sentence the judge noted that the appellant acknowledged that she had been very drunk at the time of the offence.  She had been in a relationship with Mr Cummersdale, who had also been a drinker.  He had not touched her before her attack, and he had no weapon.  She had caused nasty injuries, some of which had been near to the neck, with its major veins and arteries.  She had caused some of the injuries as he was leaving.  She had chased him as he had summoned the communal lift.  She was wielding the broken bottle.  The injury to his mouth had probably been caused in the lift.  The judge recalled the five wounds which had been treated.  He noted her previous conviction for battery and the community sentence which had been operative at the time of this offence.  She had initially been on bail for this offence, but had become drunk and been abusive in her bail hostel.  The judge had been shown an agreed schedule of domestic abuse to which the appellant herself had been subjected.  He said that she was "one of that unhappy group of women who have a habit of always attracting the wrong sort of man".  She was likely to continue to do so if she did not address her alcoholism.

13.  The judge turned to the Sentencing Council's guideline.  He considered that there was greater harm.  That was because the injuries were serious in the context of wounding with intent.  In any case, as had been conceded before him on her behalf, this was a sustained assault on the same victim who had been further injured as he fled.  The use of the weapon meant that culpability was high.  Greater harm and high culpability meant that the offence was in category 1 with, after trial, a starting point of twelve years' custody and a range of nine to sixteen years.  

14.  The judge said that there were five aggravating features of the case.  First, the victim had been attacked in his own home, even though he had not been living there full-time.  Part of the attack had also taken place in the confined space of the lift as he tried to flee.  Second, there was the ongoing effect on the victim, as his personal statement had said.  Third, the offence had been committed while the appellant was subject to a community order.  Fourth, the appellant had failed to respond to concerns about her drinking.  Fifth, she had been drunk at the time of the offence.

15.  In mitigation, the judge accepted that she had had only one previous conviction.  She had in the past been an abused woman.  The psychological report confirmed that she was only just above the level of attainment, which would have characterised her as learning disabled.  While in detention, she had at least made the beginnings of addressing her serious drinking problem.  The judge said that, ordinarily, the aggravating circumstances would have pushed the sentence well above the starting point, so as to be fourteen or even fifteen years, but as an act of mercy he would keep it down to the starting point of twelve years.

16.  On the appellant's behalf, Mr Maggs submits that the sentence was manifestly excessive.  We are grateful to him for his well-focused and helpful submissions.  The judge, he argues, was wrong to characterise this as a category 1 case.  While culpability was high, it was not a case of greater harm.  While not dismissing the injuries, when compared with other section 18 offences, they were not serious.  Although it could be said that this was a sustained or repeated attack, as a matter of proportionality it did not justify placing the offence in the top category, with its very significantly higher starting point than category 2, that is to say, twelve years' custody rather than six years.  The substantial personal mitigation should have moved the sentence down within the category 2 range.

17.  In granting leave, the single judge observed that the judge's comment about a fourteen to fifteen year sentence would have meant that he had in mind a sentence towards the top of the category 1 range, before taking mitigation into account, and it was arguable that this was excessive.  The fact that the injuries were not serious by comparison with other section 18 offences should, arguably, have caused him to place the offence in category 2, or have been of greater influence in fixing the sentence within category 1.

18.  In our view, there is force in the criticisms of the judge's sentence.  It is true that the Sentencing Council's guideline gives alternatives for greater harm – either serious harm by comparison with others, where that offence is committed, or a sustained or repeated attack.  It seems that Mr Maggs was ready to concede before Judge John, this was, without doubt, a "sustained or repeated attack".  Because a weapon was used, there was higher culpability.  It is, therefore, hard to see how the judge could do other than treat this as a category 1 offence.

19.  The appellant and Mr Cummersdale were fortunate that more serious injury had not resulted.  With her wild swinging of the broken bottle, the injuries could easily have been fatal, and the appellant could have been facing a murder charge.  But, no thanks to her, that did not happen.  The injuries he sustained were bloody, but not serious by comparison with other section 18 cases.  That feature deserved recognition within the category 1 range.  There were aggravating features, but although they could be enumerated as Judge John did, they really came down to the appellant's alcoholism.  That had lain behind her previous conviction.  That had no doubt contributed to her poor compliance with the community order.  That was the reason she was drunk on the present occasion.  That was what had led to her problems with the bail hostel.  That was what needed to be addressed.

20.  In mitigation was her near learning disability and her sorry history of bad relationships with previous partners.  She had not previously received a custodial sentence.

21.  In our view, this was not an offence that came near to the fourteen to fifteen year mark to which the judge referred.  Taking the aggravating and mitigating features into account, even a sentence of twelve years' imprisonment was, in our view, manifestly excessive.

22.  We will quash the judge's sentence.  We will substitute a sentence of nine years' imprisonment.  The previous community order will, of course, remain discharged.  

23.  To that extent this appeal succeeds.