Law and Rights
A father attends a school and assaults the Head Teacher. Should this merit a custodial sentence? This was the issue in the case of Paul Stratford - see Daily Mail 21st December. The Head Teacher wished to exclude Stratford's son from school for 1 day for 'racial abuse.' On attending the school, Stratford punched and pushed the teacher and later claimed that he was protecting his son's eye from the teacher's pointing finger. Stratford's attack on the teacher ended when the caretaker intervened and it is reported that Stratford 'continued to rant' as he left the school. The Daily Mail commented: "Despite the gravity of the offence, magistrates decided to impose only a community sentence, telling Stratford to pay his victim £100." Of course, here was a case which is grist to the mill of a "get-tough-on-criminals" newspaper but it is not unreasonable to think that many ordinary people will agree that the sentence was light.
Let us leave aside Stratford's case for a while since we just have a media report and do not know every detail. Instead, let us focus on the sentencing guidelines to see what they indicate as a sentence for an assault on a teacher when, perhaps fortuitously, there is no injury despite the teacher being punched once and pushed.
Sentencing is far from an easy task. The sentencer must apply all the relevant law (e.g. Part 12 of the Criminal Justice Act 2003 and Part 4 of the Coroners and Justice Act 2009). In particular,
the sentencer must consider: the sentencing objectives (Criminal Justice Act 2003 s.142); allowance for guilty plea (CJA 2003 s.144); general restrictions on custodial sentences (CJA 2003 s.152); pre-sentence reports (CJA 2003 s.156); and the duty to explain the sentence (CJA 2003 s. 174). Furthermore, sentencing guidance must be followed (Coroners and Justice Act 2009 s.125) unless the court is satisfied that it would be contrary to the interests of justice to do so and, if so, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.
Sentencing in the Magistrates' Court for Common assault
Sentencing guidance for common assault is in the Magistrates' Courts Sentencing Guidelines at page 213. There is a 9 step approach:
Step 1 - the court decides the "Offence Category." This depends on an assessment of harm and culpability. ONLY the factors set out on page 214 may be considered. The offence must be allocated to one of 3 categories where Category 1 is a combination of greater harm and greater culpability, Category 2 is Greater harm with lower culpability and 3 is lesser harm with lower culpability. [Query: Should there not be a 4th category of lesser harm with higher culpability?] Let us take, for the purposes of this exercise, a Category 2 case.
Step 2 - The court now looks at the sentencing starting point and the sentencing range. For Offence Category 2, the starting point is a medium level community order with a range of Band A fine to High Level Community Order. [Only if the offence were Category 1 does the range include imprisonment]. Factors in the guidance state what makes an offence either more serious or less serious and there are factors reflecting personal mitigation.
Factors making the offence more serious include: previous convictions (though the period of time since the conviction is relevant), location of the offence, the timing of the offence, the effect on the victim, the fact that the victim is providing a service to the public, the presence of other people. Factors making the offence less serious include a single blow and personal mitigation includes matters such as whether the defendant is a sole carer for another.
It is fairly obvious that a number of the "more serious" factors are present when an assault is of a teacher at a school. Assuming our Category 2 offence, the case will be at the higher end of the sentencing range - i.e. high level community order.
Step 3 - Factors which indicate a reduction, such as assistance to the prosecution - The court should take into account any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. Not relevant to our offender.
Step 4 - Reduction for guilty pleas - The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. Our offender was found guilty after trial.
Step 5 - Dangerousness - not relevant to our offender
Step 6 - Totality principle - If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. Not relevant to our offender.
Step 7 - Compensation and ancillary orders - In all cases, the court should consider whether to make compensation and/or other ancillary orders. Our offender has reasonable means and could pay compensation and costs. Available monies should be applied first to compensation and then to costs.
Step 8 - Reasons - Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 9 - Consideration for remand time - not relevant here
Hence, on the basis of these guidelines, our offender is to receive a high level community order plus an order to pay compensation and an order to pay costs.
Had it been possible to place the offence in Category 1 (greater harm and higher culpability) then imprisonment might have been much more likely.
Guidelines are not tramlines?
The guidelines are NOT tramlines even if, recently, the scope for divergence has been narrowed.
Courts may depart from guidelines if satisfied that it would be contrary to the interests of justice to follow them. In that event, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa. In a case of assaults on teachers at schools, it might well be possible to argue that, even if the guidance leads to a high level community order in the particular case, imprisonment could be justified on deterrence grounds.
On the basis of what we know, Stratford may well have deserved to hear the clang of the prison gates but we must bear in mind that there may have been other factors of which we are unaware. The courts are bound by guidelines set out by the Sentencing Council and are mandated by statute to apply them unless there is good reason, in the interests of justice, to depart from them. In that event, the reasons must be stated in open court. Critics of the sentence should perhaps focus their attention on the guidelines.
- Rolf Harris ... Historic Sexual Offences
The famous celebrity Rolf Harris - now aged 84 - has been convicted in the Crown Court at Southwark (Mr Justice Sweeney and a jury) of 12 counts of indecent assault committed in the period 1968 to 1986 - see BBC News 30th June 2014 - Rolf Harris: the...
- The Daily Mail Asks A Good Question ....
The Daily Mail 24th January asks why a "violent thug" - named as Vitalijis Zavjaloves (aged 22) - did not receive a sentence of imprisonment for his attack on Brian Gallagher in Wigan town centre last December. It is a fair question. ...
- Assault On Goalkeeper
The match between Sheffield Wednesday FC and Leeds United FC on 19th October was played at Sheffield Wednesday's home ground - Hillsborough. The match was a 1-1 draw but was marred by an ugly incident when 21 year old Aaron Crawley assaulted the Sheffield...
- You Be The Judge - Was 56 Days Imprisonment Justified?
Update 30th March - appeal dismissed- see Crown Court sentencing remarks - end of this post It is reported that Liam Stacey - a 21 year old student - was sentenced by a District Judge (Magistrates' Court) to 56 days imprisonment for his "tweets" in...
- Sentencing Council - A Look At The Draft Guidelines For Drug Offences
Sentencing Council - Professional Consultation on Sentencing for drug offences Consultation and Documentation In 2009, some 50325 adult offenders were sentenced for offences relating to controlled drugs. This is a somewhat complex area and...
Law and Rights
Sentencing ~ Common assault
Let us leave aside Stratford's case for a while since we just have a media report and do not know every detail. Instead, let us focus on the sentencing guidelines to see what they indicate as a sentence for an assault on a teacher when, perhaps fortuitously, there is no injury despite the teacher being punched once and pushed.
Sentencing - general principles:
Sentencing is far from an easy task. The sentencer must apply all the relevant law (e.g. Part 12 of the Criminal Justice Act 2003 and Part 4 of the Coroners and Justice Act 2009). In particular,
the sentencer must consider: the sentencing objectives (Criminal Justice Act 2003 s.142); allowance for guilty plea (CJA 2003 s.144); general restrictions on custodial sentences (CJA 2003 s.152); pre-sentence reports (CJA 2003 s.156); and the duty to explain the sentence (CJA 2003 s. 174). Furthermore, sentencing guidance must be followed (Coroners and Justice Act 2009 s.125) unless the court is satisfied that it would be contrary to the interests of justice to do so and, if so, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.
Sentencing in the Magistrates' Court for Common assault
Sentencing guidance for common assault is in the Magistrates' Courts Sentencing Guidelines at page 213. There is a 9 step approach:
Step 1 - the court decides the "Offence Category." This depends on an assessment of harm and culpability. ONLY the factors set out on page 214 may be considered. The offence must be allocated to one of 3 categories where Category 1 is a combination of greater harm and greater culpability, Category 2 is Greater harm with lower culpability and 3 is lesser harm with lower culpability. [Query: Should there not be a 4th category of lesser harm with higher culpability?] Let us take, for the purposes of this exercise, a Category 2 case.
Step 2 - The court now looks at the sentencing starting point and the sentencing range. For Offence Category 2, the starting point is a medium level community order with a range of Band A fine to High Level Community Order. [Only if the offence were Category 1 does the range include imprisonment]. Factors in the guidance state what makes an offence either more serious or less serious and there are factors reflecting personal mitigation.
Factors making the offence more serious include: previous convictions (though the period of time since the conviction is relevant), location of the offence, the timing of the offence, the effect on the victim, the fact that the victim is providing a service to the public, the presence of other people. Factors making the offence less serious include a single blow and personal mitigation includes matters such as whether the defendant is a sole carer for another.
It is fairly obvious that a number of the "more serious" factors are present when an assault is of a teacher at a school. Assuming our Category 2 offence, the case will be at the higher end of the sentencing range - i.e. high level community order.
Step 3 - Factors which indicate a reduction, such as assistance to the prosecution - The court should take into account any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. Not relevant to our offender.
Step 4 - Reduction for guilty pleas - The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. Our offender was found guilty after trial.
Step 5 - Dangerousness - not relevant to our offender
Step 6 - Totality principle - If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. Not relevant to our offender.
Step 7 - Compensation and ancillary orders - In all cases, the court should consider whether to make compensation and/or other ancillary orders. Our offender has reasonable means and could pay compensation and costs. Available monies should be applied first to compensation and then to costs.
Step 8 - Reasons - Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 9 - Consideration for remand time - not relevant here
Hence, on the basis of these guidelines, our offender is to receive a high level community order plus an order to pay compensation and an order to pay costs.
Had it been possible to place the offence in Category 1 (greater harm and higher culpability) then imprisonment might have been much more likely.
Guidelines are not tramlines?
The guidelines are NOT tramlines even if, recently, the scope for divergence has been narrowed.
Courts may depart from guidelines if satisfied that it would be contrary to the interests of justice to follow them. In that event, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa. In a case of assaults on teachers at schools, it might well be possible to argue that, even if the guidance leads to a high level community order in the particular case, imprisonment could be justified on deterrence grounds.
On the basis of what we know, Stratford may well have deserved to hear the clang of the prison gates but we must bear in mind that there may have been other factors of which we are unaware. The courts are bound by guidelines set out by the Sentencing Council and are mandated by statute to apply them unless there is good reason, in the interests of justice, to depart from them. In that event, the reasons must be stated in open court. Critics of the sentence should perhaps focus their attention on the guidelines.
- Rolf Harris ... Historic Sexual Offences
The famous celebrity Rolf Harris - now aged 84 - has been convicted in the Crown Court at Southwark (Mr Justice Sweeney and a jury) of 12 counts of indecent assault committed in the period 1968 to 1986 - see BBC News 30th June 2014 - Rolf Harris: the...
- The Daily Mail Asks A Good Question ....
The Daily Mail 24th January asks why a "violent thug" - named as Vitalijis Zavjaloves (aged 22) - did not receive a sentence of imprisonment for his attack on Brian Gallagher in Wigan town centre last December. It is a fair question. ...
- Assault On Goalkeeper
The match between Sheffield Wednesday FC and Leeds United FC on 19th October was played at Sheffield Wednesday's home ground - Hillsborough. The match was a 1-1 draw but was marred by an ugly incident when 21 year old Aaron Crawley assaulted the Sheffield...
- You Be The Judge - Was 56 Days Imprisonment Justified?
Update 30th March - appeal dismissed- see Crown Court sentencing remarks - end of this post It is reported that Liam Stacey - a 21 year old student - was sentenced by a District Judge (Magistrates' Court) to 56 days imprisonment for his "tweets" in...
- Sentencing Council - A Look At The Draft Guidelines For Drug Offences
Sentencing Council - Professional Consultation on Sentencing for drug offences Consultation and Documentation In 2009, some 50325 adult offenders were sentenced for offences relating to controlled drugs. This is a somewhat complex area and...