Kylie Peck [2019] EWCA Crim 1850

In R v Kylie Louise Peck [2019] EWCA Crim 1850 the Court of Appeal (Lord Justice Hickinbottom, Mr Justice Goose and Sir Roderick Evans) allowed an appeal against sentence, suspending an 18-month custodial term that had been ordered to take immediate effect.

The appellant was convicted after trial on 1 August 2019 in the Crown Court at Southampton before His Honour Judge Henry of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861. She was acquitted of affray and of the more serious charge under section 18 of the 1861 Act. His Honour Judge Henry sentenced her to 18 months’ imprisonment to be served immediately. Four co-accused who had pleaded guilty to various offences arising from the same incident received lesser sentences, including suspended sentences of imprisonment.

Late on the evening of 21 October 2018 the complainant was celebrating her birthday at the Ice House Public House, where she worked and where her mother was landlady. The appellant’s sister, Kirsty Peck, and her partner Stuart House were refused entry as the public house was closing. A disturbance followed in which they sustained minor injuries. Kirsty Peck had left her handbag and mobile phone inside. When they returned home, where the appellant was present with her partner Charlie Attrill, their complaints prompted a return visit. House and Attrill each took a knife and subsequently waved them at people outside the public house, though no injury was caused. The incident escalated when another of the appellant’s sisters, Danielle Peck, ran towards the complainant and launched herself at her, causing both women to fall to the ground. The complainant had not been acting aggressively beforehand. As the two women fought on the ground, the appellant, who had brought an empty wine bottle and a ceramic mug with her, joined in. She admitted taking the bottle and mug ready to use if needed, though at trial maintained she had intended to defend herself or another. The jury rejected that account. The appellant grabbed the complainant’s hair and attempted to kick her. When the complainant tried to get up, the appellant moved forward and in a swift motion pushed the wine bottle into her face. The bottle had already been broken, though not intentionally by the appellant. The blow caused an incised wound across the complainant’s face, including both eyelids and the bridge of her nose. The complainant later underwent surgery in which both eyelids were found to be lacerated and the right eyeball itself was lacerated, the cut having gone through the eyelid. She was fortunate to retain sight in that eye but was left with significant scarring. In her victim personal statements dated 1 March and 15 July 2019, the complainant described feeling permanently disfigured, with one eye appearing larger than the other and an eyelid that no longer closed properly. This caused daily difficulties with cleaning and cosmetics. The incident had a profoundly negative effect on her life. She had moved away from the public house and no longer worked there because of continuing anxiety.

The appellant, born on 29 March 1993, was aged 26 at sentence and was of effective good character, having only a caution for shoplifting in 2009. A psychiatric report from Dr Bekoe dated 22 July 2019 concluded that she suffered from emotionally unstable personality disorder, panic disorder, mixed anxiety and depressive disorder, and pathological grief. These co-morbid disorders were likely to manifest in emotional instability, mood swings, impulsive behaviour, anxiety, panic attacks, depression and deliberate self-harm. They were associated with a long history of traumatic experiences and adversities going back to childhood. A pre-sentence report dated 22 August 2019 set out the appellant’s circumstances. She had two children, aged nine and four, for whom she was the principal carer. In 2016 she had become pregnant with another child who was born prematurely and died after four months. The bereavement had a profound impact on both the appellant and her eldest child, who received counselling. At the time of sentence on 30 August 2019 the appellant was four and a half months pregnant, and there were concerns for her mental wellbeing during that pregnancy. The report assessed her as posing a low risk of re-conviction and of committing serious offences, and recommended a non-custodial sentence.

The judge placed the offence in Category 1 of the Assault Guideline on the basis that it involved use of a weapon taken to the scene and caused serious injuries in the context of the offence. The categorisation was not challenged. The judge took a starting point of three years’ imprisonment, which he discounted to 18 months to reflect the appellant’s effective good character, her role as principal carer of two young children, her pregnancy, the psychiatric evidence and the likely effect of imprisonment upon her. However, he declined to suspend the sentence, taking the view that the appropriate disposal was an immediate custodial sentence.

The sole ground of appeal was that the sentence should have been suspended. The Registrar referred the application to the full court, which granted leave and treated the hearing as the appeal itself. Mr Missouri appeared on behalf of the appellant.

Mr Justice Goose, giving the judgment of the court, observed that the court would ordinarily be slow to interfere with the decision of a trial judge well placed to assess the evidence and harm. The court did not criticise the 18-month term. However, the judge appeared to have decided not to suspend the sentence before he had arrived at the custodial term, which was the obverse of the correct stepped approach set out in the Imposition Guideline and did not follow the required process. The court held that the Imposition of Community and Custodial Sentences Guideline compellingly pointed in favour of suspension. In assessing factors that would make it inappropriate to suspend, the appellant did not present as a risk or danger to the public and had no history of poor compliance with court orders. The factors in favour of suspension were that there was a realistic prospect of rehabilitation; the appellant was aged 26 and effectively of good character; and there was strong personal mitigation, with immediate custody resulting in significant harmful impact upon her two young children, who were living in less than ideal circumstances separated from each other. Counsel informed the court that the appellant was imminently to lose her local authority rented accommodation due to her current absence and inability to pay the rent. To these matters should be added that the appellant was now six months pregnant and suffered significant mental disorders. The court acknowledged that the use of a bottle that was already broken and pushed into the victim’s face would normally lead to an immediate term of imprisonment. This was a serious section 20 offence with serious consequences. However, the factors pointing away from immediate custody were compelling. The Imposition Guideline, properly applied, pointed clearly towards a suspended sentence.

The court quashed the immediate sentence of 18 months’ imprisonment and substituted a sentence of 18 months’ imprisonment suspended for two years with a Rehabilitation Activity Requirement of up to 45 days, as recommended in the pre-sentence report. Although that report had suggested a four-month curfew, the court declined to impose it, taking into account that the appellant had by then served six weeks in custody. In short, the appeal was allowed and the custodial sentence suspended because the Imposition Guideline, properly applied, compelled that outcome notwithstanding the seriousness of the offence and the harm caused.