Thursday, 21 December 2017

Racially aggravated assault ~ Raheem Sterling's attacker

 Raheem Sterling is a midfield professional footballer with Manchester City.  He suffered an unprovoked attack by Karl Anderson (29) who pleaded guilty to racially aggravated common assault.  Anderson has a criminal record containing 25 convictions for 37 offences, including football-related violence.  He was sentenced at Manchester and Salford Magistrates' Court to 16 weeks imprisonment and ordered to pay compensation of £100 plus the required surcharge of £115.

This BBC Report says that Anderson kicked Sterling four times during the assault and also used racist language as well as telling Sterling he wanted his mother and child to die.  The Guardian 20th December offers rather more detail including information about the racial abuse.  Then there is the The Manchester Evening News report indicating that Sterling suffered bruising to his leg.

My immediate reaction to the sentence was that Anderson "got off lightly."  I thought I would check that view out.

Racially aggravated common assault is Crime and Disorder Act 1998 section 29.  The offence is triable either way with a maximum sentence of 26 weeks in the Magistrates' Court and 2 years in the Crown Court.


The Magistrates' Court had obviously retained jurisdiction   In deciding to do so Allocation Guidelines will have been applied.  These guidelines lean strongly in favour of BOTH the Magistrates' Court retaining jurisdiction and, following conviction, proceeding to sentence rather than commit the case  to the Crown Court for sentencing.

Thus, the Magistrates should retain the case unless "the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; ...."

Crown Court for sentence?

Even after conviction when all the facts ought to be known, the Allocation Guidance states - "The general power of the magistrates’ court to commit to the Crown Court for sentence after a finding that a case is suitable for summary trial and/or conviction continues to be available where the court is of the opinion ‘that the offence or the combination of the offence and one or more offences associated with it was so serious that the Crown Court should, in the court’s opinion, have the power to deal with the offender in any way it could deal with him if he had been convicted on indictment’.

Sentencing in the Magistrates' Court:

Anderson pleaded guilty and the court proceeded to sentence.  The Sentencing Guideline for this offence is at page 189 of the Magistrates' Court Sentencing Guidelines (pdf).  When sentencing for section 29 the approach is to decide the appropriate sentence for the offence without taking account of the element of aggravation and then make an addition to the sentence considering the level of aggravation involved.

The application of the guideline does not appear to be particularly easy in these cases.

Step 1 is to decide the category of the offence.  Category 1 is "Greater harm (injury or fear of injury must normally be present) and higher culpability." Category 2 is "Greater harm (injury or fear of injury must normally be present) and lower culpability."  Although we do not actually know, it seems likely that the Magistrates fixed this offence as Category 1 given that there was a deliberate and repeated attack - 4 kicks.  For my part, the offence clearly seems to be Category 1.

Step 2 gives the starting point for sentence which, if it was considered to be Category 1, would be a High Level Community Order with a range of High Level Community Order to 26 weeks custody.  Anderson's previous convictions would undoubtedly have pushed the sentence into the custodial area.

Custodial sentences are supposed to be for the "shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence ....."  Where to fix that sentence is not always easy but, given that the maximum power of 26 weeks I would have thought that a sentence of around 20 weeks would be appropriate.

To that there would be an "uplift" because of the racial aggravation.  Again, it is not especially easy to fix this but the Hate Crime Guidance is there to assist.  Whilst one could imagine more serious forms of racial abuse, it has to be said that the abuse in this case was of a serious nature including - “I hope your mother and child wake up dead in the morning, you nigger.”  A substantial uplift was therefore called for.

The Hate Crime Guidance offers an "approach" to sentencing - HERE.   These state that the increase may mean that a "more onerous penalty of the same type is appropriate, or that the threshold for a more severe type of sentence is passed."  The sentencer must state in open court that the offence was aggravated by reason of race, religion, disability, sexual orientation or transgender identity; and the sentencer should state what the sentence would have been without that element of aggravation.  The extent to which the sentence is increased will depend on the seriousness of the aggravation.  The guidance then goes on to set out factors indicating a high level of aggravation - e.g. The expressions of hostility were repeated or prolonged; The offence caused particular distress to the victim and/or the victim’s family.  Factors reducing the level of aggravation include it being limited in scope or duration.

I accept that the amount of "uplift" is arguable but around 10 weeks would seem a reasonable figure in all the circumstances.

That brings us to 30 weeks to which a sentencing discount is applied because of the early guilty plea.  Yet again there is guidance for this which suggests a discount of one-third in this case leading to a sentence of 20 weeks imprisonment.

The Magistrates reached 16 weeks and we do not know the reasoning given that there are no published sentencing remarks and the media are not interested in these finer points of law and procedure.  The court has to work within the constraints of the law and the guidance has to be followed unless it would be contrary to the interests of justice to do so - Coroners and Justice Act 2009 section 125.  Whilst the sentence may possibly be considered to be a tad short, the Magistrates should not be criticised for that.

Regrettably, it is unlikely that a short term prison sentence will achieve very much.  It is for those responsible for criminal justice - (Ministers and MPs) - to consider whether some intensive alternative could be created to seek to rehabilitate repeat offenders.  Meanwhile, sentencers will continue to do their best with the tools available to them.

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