R v Simon Gaynor

LORD JUSTICE FRASER: This is an appeal against sentence by the appellant, Simon Gaynor, leave having been granted by the single judge.

On 7 November 2024 in the Crown Court at Burnley the appellant pleaded guilty to one count of unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. For this on 21 February 2025 he was sentenced by Miss Recorder Brown to 27 months' imprisonment together with the statutory victim surcharge which was imposed in the usual way.

Late on the evening of Saturday 7 October 2023 a male, to whom we shall refer as "the victim", entered the Vintage Claret Public House in Burnley. He ordered a drink and sat with his back to the door. A few minutes later a group of six or seven people walked past him. Soon after that he was approached by the appellant who tried to hit him with his right hand. A scuffle between the two men followed, as the victim attempted to defend himself. The victim was struck to the head causing significant bleeding. The appellant then left the public house.

The victim went home before seeking treatment for his head wound at hospital. He sustained a three centimetre laceration to the left side of his forehead. The wound was cleaned and sutured. The injury was consistent with being struck with a glass bottle or something similar. The landlady of the public house refused to give police officers access to the full CCTV recordings from inside the premises. Some short clips were available. She indicated to officers that a glass vase was missing.

After his arrest, and in his police interview, the appellant said that he did not know the victim but a member of his group had referred to that person as "a paedophile or nonce". The appellant described his own background and accepted that he had scuffled with the victim but maintained he had not used a weapon against him. He admitted having consumed alcohol but denied being intoxicated. In his basis of plea the appellant acknowledged going to confront the victim and using a nearby glass bottle or vase to hit him.

In sentencing, the learned Recorder explained that the appellant was entitled to and would receive 25 per cent credit for his plea and that she was sentencing him on the basis of the plea that he had provided. He had consumed five or six pints of beer and had also taken a line of cocaine. The victim now had a permanent scar on his forehead and now felt vulnerable when he is out and about. As that person had suffered a completely unprovoked attack, we pause to observe that those feelings on his part are entirely understandable and we have seen photographs of the resulting scar which he now carries as a result of this attack.

Returning to the sentencing remarks, although the prosecution and defence were agreed between themselves that this was a category B3 offence, which the sentencing Recorder stated she did not entirely agree with, she identified the aggravating factors and also the previous conviction for violence that the appellant had which included a section 47 offence for an assault causing actual bodily harm in which an item had also been used as a weapon. The sentencing Recorder took a starting point of three-and-a-half years and discounted it to three years for his personal mitigation having considered the references available for him and the contents of the pre-sentence report. Although the credit of 25 per cent (or nine months) was then applied, that reduced the sentence to 27 months. She made clear that even if the overall sentence of imprisonment had qualified the appellant for consideration for a suspended sentence, in other words if it had been 24 months or less, she would not have suspended it as a matter of discretion.

There is but one ground of appeal and this is that the starting point taken by the learned sentencing Recorder was too high. Whether that is or is not a valid point requires consideration of the guidelines.

The prosecution and the defence were agreed that this was a Category B3 offence. Category B is medium culpability and Category 3 refers to the level of harm. Category 2 (in other words B2) would be an offence which so far as harm is concerned would result in a permanent irreversible injury or condition which is not included within Category 1. The permanent scarring on the forehead of the victim in our judgment plainly counts as harm of Category 2, but even if that is wrong it would be an aggravating factor were the figures in B3 to be taken. B3 has a starting point of one year with a range of up to two years. B2 has a starting point of two years with a range of one to three years.

We have been helped by Mr Kavanagh for the appellant this morning who described what happened in the public house as a "scuffle". We are of the view that such a term is potentially misplaced given what occurred in this instant, which was that the appellant attacked the victim in an entirely unprovoked manner. A scuffle did ensue after that, but that was as a result of the victim seeking to defend himself. It was conceded rightly by Mr Kavanagh that the custody threshold was passed in this case. He also accepts that there was a degree of vigilantism given what the defendant had explained in his pre-sentence report about the reasons for the attack. We accept that there are limited previous convictions on the part of the appellant but he does have a previous conviction for violence and although he has some personal mitigation, given his mental health conditions, the sentencing Recorder reduced the amount of suitable sentence to take account of those. Reliance is also placed on the fact that the prosecution conceded or agreed the categorisation with the defence for the purpose of sentencing. We have also seen the prison report prepared on behalf of the appellant. He is no doubt doing valuable work whilst in custody towards improving his behaviour and he maintains a positive relationship with his partner and his dependent children who are able to visit him and do so. His release date is now 4 August 2025.

However, notwithstanding Mr Kavanagh's persuasive submissions, it is clear that the court is not bound when sentencing anybody as to the view of the prosecution in any particular case regarding categorisation, although it will take that agreement as to categorisation into account. It has been said many times that sentencing guidelines are exactly that: guidelines. They are not rigid limits. Here the offence was unlawful wounding but aggravating factors that are not inherent within the offence itself, which is obviously an offence of violence which causes a wound, are as follows: this was an entirely unprovoked attack, it involved the use of a weapon, it took place not only in a public place but on licensed premises, the appellant had consumed an amount of alcohol and some drugs prior to the attack, he also fled the scene. Added to those factors is the permanent scar. If one takes the categorisation as B2 that is taken into account. If one takes the categorisation as B3 that is a further aggravating factor. Although there was no group attack upon the victim, the appellant arrived at the pub in a group and chose to attack an individual who was sitting on his own at a table quietly having a drink. In terms of the unprovoked nature of the attack, there was no background or background issues between the two men and the victim did not even know the appellant. The appellant took against him on the basis of a single piece of information given to him by someone within his own group and, as Mr Kavanagh described it, that degree of vigilantism simply has no place in a law-abiding society.

We have carefully considered the grounds of appeal and all of the material that has been submitted to the court and we are satisfied that the starting point chosen by the learned sentencing Recorder was justified in this case. We are not persuaded that the resulting sentence is manifestly excessive or has been reached after an error of principle. This appeal is therefore dismissed.