Smith, R v

MR JUSTICE TREACY: The appellant in this case is Roswell Smith. He pleaded guilty to an offence of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 at Coventry Crown Court. He was sentenced on 7th February 2008 by His Honour Judge Pyke to a term of six years' imprisonment.

The offence took place on the morning of 17th August 2007. The complainant was driving his car. He had a passenger with him. As he drove past an exit from a car park the appellant pulled out in his vehicle and, to put it in the vernacular, cut up the complainant. The complainant said something along the lines of: "You stupid black bastard". The appellant or his passenger heard that comment and so the appellant reversed his car back towards the complainant's now stationary vehicle and blocked it in. The appellant got out of his car. He was seen by the complainant's passenger to pick up a knife as he did so. He confronted the complainant about what he had said and there was a verbal exchange between the two men.

The appellant refused to move his vehicle and so the complainant tried to reverse away from the situation. However as he began to do so the appellant leaned through the driver's window of the complainant's car and slashed the face of the complainant with the knife. The slash entered one side of the mouth, went through the mouth injuring the gum and exited through the lower left lip, cutting entirely through the left lip so that the two parts of the lip were left separated. That slashing motion then continued so that the shoulder of the victim was also struck and there was a three-inch cut sustained to that part of the complainant's body.

At that point the appellant walked off. The appellant had had in his vehicle another man who had come out of the appellant's vehicle at about the same time as the appellant got out. That other man was an Angolan national who at the time was working illegally for this appellant. The appellant's action in the aftermath of this incident was to tell that person to leave the city of Coventry and not to come back. That was the beginning of a seriously aggravating feature of this case. The appellant set about within moments of the offence taking place creating a false defence for himself. The appellant had left the scene for a short while but then returned to the scene, by which time the police arrived and he was arrested. In a series of interviews he denied that he was responsible for inflicting the injuries upon the complainant. He said that the person responsible was the person who had been his passenger - the man he had told to leave the city and not to come back. However, the police investigation showed that that repeated account was lies. There was a positive identification of the appellant made both by the complainant but also by the other person in the complainant's vehicle.

Eventually the man who had been a passenger in the appellant's vehicle was traced by the police and he confirmed the accuracy of the identification by made by the complainant and his passenger. Accordingly when the matter came to court this appellant tendered a prompt and early guilty plea.

There was a basis of plea document placed before the court. In it the appellant said that he had attacked the complainant after he had been called a black bastard twice. The appellant also said that the knife which was used was not a Stanley knife but a putty knife. Assuming that to be correct, and the prosecution did not seek to contradict those assertions, it is plain to us having seen the photographs of the injuries that that knife, however it may be described, was an extremely sharp one. The appellant's account was that the knife which he used was one which he had with him that day for purposes relating to his work. Again the prosecution did not seek to contradict that.

This appellant is 33 years of age. He was of previous good character. There was a pre-sentence report available to the judge and there were favourable references, together with two letters from the appellant. The reporting officer found that the behaviour of this appellant was out of character as the appellant himself said it was. He took full responsibility for what he had done. The author of the report's view was that notwithstanding the level of violence used the likelihood of reoffending was low. The appellant had come to this country some 11 years ago and had worked his way up the employment ladder. At the time of his arrest he was self-employed and ran his own cleaning company. He was a married man with two children. There was no evidence at all that he was someone who abused alcohol or drugs.

The submission made to us is that the sentence which was imposed in this case was manifestly excessive - either the judge failed to give sufficient credit for the matters favourable to this appellant and his guilty plea, or he had adopted too high a starting point. Mr Singh also reminded us that the incident was preceded by racial provocation in the way which we have described and pointed out that what occurred was an attack involving a single blow or, more accurately put, a single slash as opposed to repeated use of the knife.

This was a vicious attack causing a dreadful injury. It was caused with a knife which this appellant had with him and had removed from his car when he went to confront the victim. He used the knife, it is plain to us, to punish the victim for the abuse which he (the appellant) had received. The appellant pleaded guilty at an early stage to this serious offence, although we have to point out the aggravating nature of the way in which he had sought to blame another, leading indeed to the arrest of that other person. The offence was undoubtedly out of character on a review of this appellant's background. He is a hard-working family man and the judge accepted that by the time of sentence he was expressing genuine remorse. The judge was entitled to and indeed took account of the element of racial provocation which no doubt lay behind the flaring up of this incident.

The ultimate question for this court is whether in those circumstances, including the guilty plea, a sentence of six years was too long. In our judgment the sentence was in all the circumstances too high. In our judgment the sentence imposed does not sufficiently reflect the mitigation which was available to this appellant, in addition to the guilty plea. We have had regard to the recent Sentencing Guidelines Council guideline which came into effect about a month after the time of sentencing in this case, but it supports our conclusion that the sentence which was in fact imposed was one which was too long. Nonetheless, this was a serious offence involving a very sharp bladed weapon used with the intention of causing really serious harm and used in a way which was bound to disfigure and indeed to cause serious harm. We have pointed to the additional aggravating feature of this offence, namely the attempt to blame another. Taking account of those matters, we consider that a reduction of the sentence is merited to the extent of reducing the sentence in this case to one of five years. To that extent the appeal is allowed.