Aaron Lee Clare [2019] EWCA Crim 973

Regina v Aaron Lee Clare [2019] EWCA Crim 973 was an appeal against sentence heard by the Court of Appeal (Lady Justice Rafferty DBE, Mrs Justice McGowan DBE and the Recorder of Cardiff, Her Honour Judge Eleri Rees) which allowed the appeal and reduced the custodial term imposed.

On 21 January 2019 in the Crown Court at Reading Mr Clare pleaded guilty to inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. The prosecution offered no evidence on a count alleging grievous bodily harm with intent under section 18. The judge sentenced Mr Clare to three years and seven months’ imprisonment, having revoked a community order that was in force at the time of the offence but imposing no separate penalty for its breach.

At around midnight on 5 August 2018 Mr Clare entered the Honeypot Gentlemen’s Club in Maidenhead. The victim, Mr Vasile Morit, said that during the following hours Mr Clare looked towards him in an intimidating way although there was no other interaction between them. At approximately 3.30 am Mr Morit left the club alone to smoke a cigarette and then attempted to re-enter at the same time as Mr Clare was leaving. Mr Clare blocked his path and Mr Morit placed his hand on Mr Clare’s shoulder in order to move past him. Mr Clare then pushed Mr Morit backwards into the road and punched him once to the face. Mr Morit immediately collapsed to the ground. He subsequently got to his feet and telephoned the police to report the offence. He then saw Mr Clare walking away from the scene and shouted for him to stop, but Mr Clare ran away at speed. Mr Clare was originally identified by CCTV and was eventually arrested at his home. When interviewed on 21 August 2018 he made no comment.

The sentencing judge described this as an unprovoked attack which left the victim with fractures to the nose and both orbital sockets. She had read victim impact statements and seen photographs of the injuries. As a result of the attack the victim had been left with a deep laceration to the nose, a broken nose, fractured sinuses and eye socket fractures. He had attended numerous hospital appointments at Maxillofacial and Ophthalmology Units and was awaiting further surgery. He was unable to smell or taste and suffered continuing pain. The judge found that the injuries were serious in the context of the offence. She noted that Mr Clare was a powerfully built man and because of his previous offending he must have appreciated his own strength. Even if there were no particular factors which placed the offending in the high culpability range, there were other factors that increased the seriousness, namely Mr Clare’s previous convictions, the time and location of the offence, the ongoing effect on the victim and the fact that Mr Clare had been under the influence of alcohol when he committed the offence. Finally Mr Clare had been subject to a community order for assaulting a police officer at the time of this offence. Mr Clare, who was 30 years old, had 20 convictions for 32 offences including two offences against the person and three public order offences. In mitigation the judge took account of the fact that Mr Clare was a father of three young children and that in 2017 he himself had been the victim of an attack which had left him in a coma with potential ongoing problems. The judge noted that there had been a period of three years when Mr Clare had remained out of trouble, that there were no issues in relation to drugs, but identified problems controlling himself and his temper when in drink. The judge concluded that this was a category 1 case under the Definitive Guideline, which has a starting point of three years and a range of two years and six months to four years’ imprisonment. She decided that the appropriate sentence after trial would be one of four years’ imprisonment. She applied a reduction of 10 per cent to reflect Mr Clare’s guilty plea on day of trial, producing a sentence of three years and seven months’ imprisonment.

On appeal Mr Clare submitted that the judge erred in placing this within category 1 of the Definitive Guideline and in adopting the top of the range, namely four years, thereby arriving at a sentence which was manifestly excessive. It was submitted that this offence should have been placed within category 3, which provides a starting point of 18 months with a range of one to three years. It was also submitted that although serious, the injuries were not serious in the context of an offence of inflicting grievous bodily harm.

The court disagreed with the suggestion that the injuries were not serious in context. The fractures to the nose, sinuses and eye sockets were potentially life changing. They had deprived the victim of a sense of smell and taste and involved a significant number of medical appointments, intervention and the prospect of further surgery. It was far from clear that he would ever recover fully. The judge had acknowledged that there was an absence of those factors which would indicate higher culpability. Although the judge described Mr Clare as powerfully built, she did not approach the punch as the use of a weapon. The guideline includes the fact that there was a single blow as one of the factors indicating lower culpability. There were a number of aggravating factors including Mr Clare’s previous convictions for violence. This was unprovoked and alcohol fuelled violence outside a nightclub in the early hours of the morning. The overlap between the ranges of sentence for category 1 and 2 reflects the fact that individual circumstances of a particular case may not fall neatly within one or the other. The court concluded that this was a category 2 case, but the aggravating factors justified sentencing at the top of that range. Alternatively, if the combination of aggravating factors justified placing it in category 1 there would be double counting if those factors were allowed also to move it to the top of that range. The court therefore concluded that the starting point should have been one of three years and allowing 10 per cent credit for the late plea reduced that to a term of 32 months’ imprisonment.

In short, the appeal was allowed and a sentence of two years and eight months’ imprisonment was substituted for the original term of three years and seven months, the court having concluded that the offence fell within category 2 rather than category 1 and that a starting point of three years was appropriate.