Mohammed, R. v

MRS JUSTICE MAY: On 17 September 2016 Ricki Walia was out celebrating his birthday with friends. By the early hours of 18 February 2016 they had arrived at The Bonbar in Fenkle Street in the centre of Newcastle.

At around 2.30 am Mr Walia was outside in the smoking area where the appellant was standing with his two brothers. The appellant was very drunk. In circumstances which remain unclear, the appellant hit Mr Walia hard in the face with a glass in his hand. The glass smashed, causing severe lacerations to Mr Walia's cheek and around his right eye. Most worryingly it also resulted in a penetrating injury to his left eye. He was taken to hospital.

The evidence of the doctor on duty in A & E was that Mr Walia had multiple wounds to his face: a number of deep cuts, one of them stretching upwards involving his eyelid, others to his cheek. He had swelling and tenderness on his right eyebrow and swollen and tender nose with some bleeding from the nose. His right eye was red and appeared to have a cut to the surface affecting the area below the iris. The left eye had a puncture wound above the iris. Some of inner contents of the eye were protruding through the cut. At that point Mr Walia was unable to detect bright lights with this eye, was unable to see shapes or faces and had blood inside his eye. He was referred to maxillofacial surgery for the facial wounds and to ophthalmology for emergency treatment for the penetrating eye injury. Mr Walia remained in hospital for several days.

The appellant was arrested at the scene. He was noted to be covered in blood, distressed and heavily intoxicated. In interview he said that Mr Walia had gone for his brother and that he, the appellant, had intervened and pushed Mr Walia away. He denied smashing a glass in his face.

The appellant was charged with a section 18 offence of wounding with intent. At trial, on 21 February 2018, he pleaded guilty to the lesser alternative offence of section 20 wounding which had by then been formally added to the indictment. The trial on the section 18 offence proceeded and he was acquitted of that offence. On 27 April 2018 he was sentenced to 2 years and 4 months' custody, that sentence being reduced at a subsequent hearing convened under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, on 8 June 2018, to one of 2 years. We deal later in this judgment with the circumstances under which that slip rule hearing was convened and the sentence reduced.

The appellant now appeals the sentence of 2 years with leave of the single judge.

The appellant, who is now aged 26, had no previous convictions. At the time of this offence he was a newly qualified pharmacist with a degree in pharmacy from Manchester University working in Newcastle.

Mr Walia read out his victim personal statement at the sentencing hearing. Unusually he was asked questions about his injuries and state of recovery on that occasion. In sentencing, the learned Recorder observed that the appellant was fortunate to have been acquitted of the more serious offence. He ruled out any provocation or any attack by Mr Walia. Having heard the evidence at trial he was clear, he said, that it had been a deliberate attack by the appellant in drink and nothing more.

The Recorder concluded that the injuries to Mr Walia were life changing, as he described it, not only for him but also for the appellant who stood to lose his position as pharmacists, one for which he had worked hard. The Recorder considered that the extent of the injuries to Mr Walia's eye qualified as greater harm and that the use of the glass, albeit with only one blow, involved higher culpability. The offence accordingly fell into category 1 of the guideline, with a starting point of 3 years and a range of two-and-a-half to 4 years. There were aggravating features, namely the time and location of the incident, in the early hours in a busy bar. The appellant had been very intoxicated.

The Recorder also referred to the considerable mitigation. The appellant is a man of previous good character. There was a degree of remorse and there was the likely permanent loss of his profession.

Balancing these factors the Recorder passed a sentence initially of 2 years and 4 months. After sentence defence solicitors managed to obtain photographs posted onto the public page of Mr Walia's Facebook account. There were some postdating the incident showing Mr Walia at his father's birthday celebration a month after the incident and also at Christmas. Others showed him on holiday abroad on a number of occasions in 2017 and 2018 and also at restaurants and other social functions. It was submitted that these pictures undermined the impression Mr Walia had given to the court at the sentence about the ongoing effect of the injuries that he had sustained. The defence had also obtained a report from the ophthalmology clinic where Mr Walia had been attending since the accident. It appeared that his vision was now normal and there were no further appointments booked.

In the light of this evidence the defence asked for a further hearing. The court directed that the case be listed under the slip rule and that the prosecution should attend. Mr Walia was invited to attend also and, if agreeable, to be tendered for cross-examination. That hearing took place on 8 June 2018. Mr Walia attended and was once more asked questions. We have read the transcript of that hearing. At the end of what the Recorder rightly described as "a further opportunity to address the full impact of the offence on the victim", he concluded that in view of the fuller and up-to-date picture he was prepared to vary the sentence by reducing it to the starting point under category 1 of the guideline, namely 3 years, which he then reduced for mitigation and discounted by 25% for plea, resulting in a sentence of 2 years. He declined to suspend that sentence on the basis that:

Mr Knox, who appears for the appellant on this appeal as he did at trial, submitted that the Recorder erroneously concluded that Mr Walia's injuries were life changing, placing the offender wrongly in category 1, resulting in a sentence which was manifestly excessive. However we understood him at the hearing before us to have conceded that this was offending which did fall within category 1. The second point made by Mr Knox is that the judge should have suspended the sentence which he passed which would have offered some chance of the appellant being reinstated in his profession.

Mr Knox rightly does not seek to underplay the severity of the injuries themselves. He argued that Mr Walia had over-exaggerated the extent of the ongoing effect on him of these injuries in order to bolster his case for compensation. In reducing the sentence following the slip rule hearing the Recorder must have concluded that there had been some exaggeration, he submits, but that the reduction failed properly to deal with the consequences of that overstatement in terms of the sentence passed on this appellant. We disagree.

The learned Recorder heard from Mr Walia at trial, at the sentencing hearing on 27 April and then again at a further hearing on 8 June 2018. The Recorder was thus in the best possible position to evaluate the extent of the effect of the injuries which this appellant had inflicted and where they fell in terms of harm for the purpose of the Sentencing Guideline. The injuries were unquestionably serious involving, as they did, deep cuts to the face and penetration of the glass into one eye. It could so easily have been much worse.

A sentence of 2 years equates to one of 32 months after trial, allowing for the 25% discount. This is lower than the 3 year starting point for category 1, indicating that substantial allowance had been made for this appellant's undoubtedly strong personal mitigation.

We regard the 25% discount as somewhat generous in the circumstances. It was not until the first day of trial that an unequivocal plea of guilty to the section 20 offence was indicated to the Crown and to the court. Prior to that, self-defence and accident still appeared to be somewhat live issues on the face of the defence statement filed with the court. Even if the section 20 count had not been formally included on the indictment prior to trial, it would have been open to the appellant's representatives to ask for the case to be listed so as to enter a plea to the lesser alternative.

For these reasons we do not believe that the Recorder erred in the conclusions which he reached as to where this offending fell into the guideline nor do we regard the sentence which he passed as manifestly excessive. His decision not to suspend was one which it was within his discretion to make. As to this the Recorder clearly had in mind the relevant guideline. We cannot see that he exercised his discretion wrongly or unreasonably. In any event, we agree with him that appropriate punishment for breaking a glass in someone's face near their eyes could only be achieved by imposition of a sentence of immediate custody.

For this reason we dismiss this appeal.