Friday Law Report: Sentencing for racially aggravated offences

THE COURT of Appeal gave guidelines on sentencing for racially aggravated offences.

The Court of Appeal dismissed the appeal of Joseph Brian Saunders against a sentence of 42 months' imprisonment, passed after his conviction of racially aggravated assault occasioning actual bodily harm.

A man called Shakir Ali was parking his car outside his house when the appellant, who was standing in a doorway, said: "I don't like Pakis, fucking Pakis" and "Kick them all out".

Shortly afterwards, the appellant attacked Mr Ali.

The appellant appealed against his sentence, submitting that it was manifestly excessive, and relying on the decision in R v Clarke 13 Cr App R(S).

Gerard Doran (Registrar of Criminal Appeals) for the appellant.

Lord Justice Rose VP said that there were a number of features which distinguished the present case from Clarke, including the fact that in the eight years since that case Parliament and the courts had hardened their attitude against racial misconduct.

One of the most important lessons of the century, as it neared its end, was that racism should not be allowed to flourish. The message had to be received and understood that racism was evil. It could not co-exist with fairness and justice. It was incompatible with democratic civilisation.

The courts had to do all that they could, in accordance with Parliament's recently expressed intention, to convey that message clearly, by the sentences which they passed in relation to racially aggravated offences. Those who indulged in racially motivated violence must expect to be punished severely, in order to discourage the repetition of that behaviour, by them or others.

By section 28(1) of the Crime and Disorder Act 1998 an offence was racially aggravated if:

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial group; or (b) the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.

In the present case, by virtue of section 29(1)(b)(ii) of the Act, in relation to conviction on indictment Parliament had increased the maximum sentence of five years' imprisonment for assault occasioning actual bodily harm to seven years, where that offence was racially aggravated.

The court's sentence had to reflect that. That meant that, generally speaking, following a trial, a period of up to two years should be added to the term of imprisonment otherwise appropriate for the offence, had it not been racially aggravated. Accordingly, it would often be helpful if the sentencing judge first considered the appropriate sentence for the offence in the absence of racial aggravation and then added a further term for the racial element, so that the total sentence reflected the overall criminality. Even if the basic offence would not cross the custody threshold so as to merit imprisonment, the element of racial aggravation might well result in the custody threshold being passed.

The level at which a case fell in the sentencing scale, having regard to the possible maximum addition of two years, would depend on all the circumstances of the particular case. Relevant factors would include the nature of the hostile demonstration, whether by language, gestures or weapons; its length, whether isolated, or repeated, or persistent; its location, whether public or private; the number both of those demonstrating and those demonstrated against; and the presence or absence of other features: for example, the same offensive remark was likely to attract a heavier penalty if uttered in a crowded church, mosque or synagogue than if uttered in an empty public house. A discount would be appropriate in accordance with general sentencing principles for, among other things, genuine remorse, a plea of guilty and previous good character.

Taking all those considerations into account in the present case, the sentence was not manifestly excessive.