Neutral Citation Number: [2001] EWCA Crim 1608
IN THE COURT OF APPEAL 
(CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 10th July 2001

		B e f o r e :

		LORD JUSTICE POTTER
		MR JUSTICE TOMLINSON
		and 
		MR JUSTICE McCOMBE

	regina		
	
	- v -	
	
	EVERTON LORRAINE ECCLESTON	

		REFERENCE UNDER SECTION 36 
		OF THE CRIMINAL JUSTICE ACT 1988
		(No. 79 of 2000)

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		(Transcript of the Handed Down Judgment of
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                                 MR DAVID THOMAS QC (instructed by the Crown) for the            Attorney General
                               MR ANDREW JACKSON (instructed by Glaisyers) for the Offender

              Judgment
                As Approved by the Court
                                     Crown Copyright ©

Lord Justice Potter:

1.	On  21st August 2000 before His Honour K.S. Wilson-Mellor Q.C. and a jury at the Crown Court at Wolverhampton the offender, Everton Lorraine Eccleston was convicted after a trial of wounding Clifford Richard Beckett with intent to cause grievous bodily harm, contrary to Section 18 of the Offences Against the Person Act 1861.  He was sentenced to 18 months imprisonment.  The incident giving rise to his conviction occurred on 8th December 1999 shortly after which the offender was arrested.  He remained in custody until his release on licence on 20th March this year.
2.	His appeal against conviction was heard immediately before the submissions on this Reference and was dismissed by us in a judgment handed down today.  The Attorney General applies for leave to refer the sentence to this Court and we hereby grant that leave.
3.	At the time of this offence the offender was lodging in the home of a woman named Anita Rose. He had enjoyed a previous relationship with Miss Rose’s sister, Pat.  The victim Mr Beckett had had a relationship with another sister of Anita Rose called Angela, who was the mother of the victim’s daughter.  The victim formed the view that the offender was trying to ingratiate himself and start an affectionate relationship with Angela Rose.  He went to the house occupied by Anita Rose in  order to speak to the offender and discourage him from “trying to get with Angela.”  The victim went to the room occupied by the offender and an argument began, in the course of which the offender raised his voice and threats were exchanged.  On the prosecution case the victim then left the house and drove away.  Shortly after leaving the house he stopped to make a telephone call to Anita from a public telephone box.  He saw the offender outside the box, the door was opened and the offender struck the victim a single heavy blow in the face with a pair of scissors which he had earlier taken from a room in Anita Rose’s house.  The sentencing judge said that there was no doubt that the offender had raised the scissors above his head and brought them down on the victim’s head.  The scissors penetrated both lips, the chin and down to the throat of the victim as the latter tried to throw his head away and backwards to avoid the blow.  The victim suffered severe cuts to the upper lip, lower lip, the chin and into his neck.  He went to hospital where the cuts were stitched.  Medical evidence indicated that the cuts would leave permanent scars on the victim’s face.  The offender’s own account was different.  He claimed that he had made the telephone call and that the victim had waited for him outside the box and that he used the scissors in self-defence after the victim punched him.  Self-defence was the principal issue before the jury.  That version of events was obviously rejected by the jury.
4.	The offender has one previous conviction in 1996 of criminal damage in respect of which he was bound over.  The judge passed sentence without obtaining a pre-sentence report.  He stated that he moderated the sentence in view of the offender’s good character and circumstances.  As we have said, the offender was sentenced to 18 months’ imprisonment.
5.	On the facts as found by the jury the case must be treated as one in which the offender, who was effectively of previous good character, wounded another man with intent to cause really serious injury, after taking a pair of scissors from the house where he was staying, following the victim in a car, and attacking him in the vicinity of the telephone box.  The victim was attacked without immediate provocation or warning (although there had been the earlier argument to which we have referred).  The victim suffered the facial injuries which we have mentioned, resulting in permanent scarring.
6.	In  mitigation before the learned judge it was put that the offender was 37 years old, with a settled job which he had held for sometime.  He was as we have said of good character.
7.	As was clear, the learned judge stated that a substantial custodial sentence was the only possible result.  He indicated that he moderated the sentence because of the good character of the offender and the circumstances of the case generally.  The Attorney General draws attention to two aggravating features  namely (1) that the offender followed his victim and stabbed him without warning and (2) the serious and disfiguring nature of the injuries.  It is accepted on behalf of the Attorney General that the offender’s good character is the mitigating factor.
8.	On behalf of the Attorney General, Counsel invites comparison with two specific categories of case in this Court namely attacks using glasses or bottles and cases involving stabbing with knives in the course of public disturbances.  Of the former category we need only refer to two. The first is Attorney General’s Reference Number 24 of 1998 (Pope) [1999] 1 Cr.App.R(S) 278, in which Lord Justice Rose, giving the judgment of this Court, stated that after a trial such offences usually carry a sentence of the order of 5 years’ imprisonment.  Similar comments are to be found in R. v. Dooley [1999] 2 Cr.App.R(S) 364, also suggesting that the tariff sentence is one of 5 years following a trial.  In that case, reference is also made to Attorney General’s Reference No.14 1994 (Walker) 1995 16 Cr.App.R(S) 376, a judgment of Lord Taylor CJ, where the same conclusions are reached.  The three cases in the latter category to which we have been referred are the following : Attorney General’s Reference No 37 of 1996 (Hobday) [1997] 1 Cr.App.R(S) 304, Attorney General’s Reference No.10 of 1993 (Barclay) (1994) 15 Cr.App.R.(S) 487 and Attorney General’s Reference No. 13 of 1990 (Bailey) (1990) 12 Cr.App.R.(S) 578.
9.	In those three cases, following pleas of guilty, sentences of the order of 3 years and 4½ years were imposed on References by the Attorney General to this Court.  Thus it appears that, allowing for the element of double jeopardy, sentences in the range between 5 and 7 years would have been considered to be the proper tariff sentences after a trial.  For the offender, it has been urged upon us that a distinguishing feature of this case from those to which we have referred is that the incident here derived from a private argument (earlier initiated by the victim) which coincidentally ended in street violence.  It is not a case of “glassing” or “stabbing,” arising out of a breach of public order when the participants had been drinking to excess.  We treat that as a relevant distinction which, in addition to the ‘double jeopardy’ element, we should take into account.
10.	We conclude that an appropriate sentence in this case following a trial would have been one of 5 years imprisonment and that the sentence imposed by the learned judge was unduly, indeed unaccountably, lenient.  We of course bear in mind the element of double jeopardy, which is substantial in this case, as the offender spent a lengthy period in custody awaiting trial and was released on 20 March 2001, being tagged thereafter for two months.  A return to custody will, it is recognised, work particular hardship on him in the circumstances.  We conclude nevertheless, that this sentence must be increased.  Allowing for a small measure of distinction in the nature of the offending from that involved in the decisions to which we have been referred and because of the element of double jeopardy, we confine that increase to a sentence of  3 years and 6 months.  The balance of the sentence over and above that already served will commence from the date upon which the offender surrenders to custody.  We would therefore substitute a sentence of 3½ years imprisonment for the term of 18 months originally imposed by the judge.