Law and Rights
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. Zavjaloves had pleaded guilt to assault by beating and, at Wigan and Leigh Magistrates' Court, he was sentenced to a suspended sentence order involving four months imprisonment suspended for 12 months with a specified activity requirement, 250 hours unpaid work. In addition, £600 in compensation was ordered, a surcharge of £80 and £85 in costs.
According to the Daily Mail report, Zavjaloves had been drinking that night. His legal represetative informed the court that Zacjaloves was not a violent individual. (That appears to mean that he was not usually a violent individual)! It was also added that he regrets what has happened and is remorseful. It is not clear what actual demonstration of remorse there was. There is only the assertion that he is remorseful. After delivering the kick to Gallagher's head, Zavjaloves was "captured on CCTV cameras laughing with a friend as he left."
The relevant sentencing law is in the Criminal Justice Act 2003. In particular, section 152(2) states:
"The court must not pass a custodial sentence unless it 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 neither a fine alone nor a community sentence can be justified for the offence."
The court will have applied the Magistrates' Court Sentencing Guidelines and they will have had the benefit of a pre-sentence report (not available to us). Such a report would give the sentencer a more detailed analysis of the offence and considerable information about the offender. I think that the relevant page in the guidelines would be page 213 (Common Assault). [Is there an element of 'undercharging' here?]. That guideline states that, for a Category 1 offence, the sentencing range is a "high level community order to 26 weeks custody." It will be noted that using a "shod foot" as a weapon is an aggravating feature.
I expect that the court will have wrestled with that guideline and they can hardly be severely criticised for the actual sentence they reached. It is well within the permissible range of sentencing and, after all, it is a statutory requirement that sentencing guidelines have to be followed unless it would be contrary to the interests of justice to do so. If a court departs from a guideline then it must state its reasons for doing so.
For my part - and I emphasize that this is only my view - there were good reasons here to depart from the guideline. It is perhaps by luck alone that Gallagher was not very seriously injured or even killed. Furthermore, the Chairman of the court reportedly indicated that there is serious concern about violence in Wigan - "It was a vicious attack - we are sick and tired of seeing incidents like this in Wigan town centre - You kicked his head as if it were a football, he had no way of defending himself and he did not know it was even coming" Nevertheless, the court was lenient with Zavjaloves because he had shown remorse and it was an isolated incident and he had previous good character.
It would be interesting to know how the compensation will be paid. A compensation order would not have been made had Zavjaloves been actually sent to prison. Usually, the court orders monetary payment at £x per fortnight (or some other specified time period). It may therefore be a very long time before Mr Gallagher receives the full compensation. It is of course open to Mr Gallagher to sue Mr Zavjaloves in the civil court but the compensation award would be taken into account in any damages awarded.
Notes:
1. Aims of sentencing are set out in the Criminal Justice Act 2003 section 142 - (a) punishment of offenders; (b) reduction of crime (including its reduction by deterrence) .... (c) protection of the public ...
2. It is the normal practice to reduce the sentence if a guilty plea is entered. For a guilty plea at the earliest possible stage, the reduction will be one-third. Thus, 6 months imprisonment reduced to 4.
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Law and Rights
The Daily Mail asks a good question ....
According to the Daily Mail report, Zavjaloves had been drinking that night. His legal represetative informed the court that Zacjaloves was not a violent individual. (That appears to mean that he was not usually a violent individual)! It was also added that he regrets what has happened and is remorseful. It is not clear what actual demonstration of remorse there was. There is only the assertion that he is remorseful. After delivering the kick to Gallagher's head, Zavjaloves was "captured on CCTV cameras laughing with a friend as he left."
The relevant sentencing law is in the Criminal Justice Act 2003. In particular, section 152(2) states:
"The court must not pass a custodial sentence unless it 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 neither a fine alone nor a community sentence can be justified for the offence."
The court will have applied the Magistrates' Court Sentencing Guidelines and they will have had the benefit of a pre-sentence report (not available to us). Such a report would give the sentencer a more detailed analysis of the offence and considerable information about the offender. I think that the relevant page in the guidelines would be page 213 (Common Assault). [Is there an element of 'undercharging' here?]. That guideline states that, for a Category 1 offence, the sentencing range is a "high level community order to 26 weeks custody." It will be noted that using a "shod foot" as a weapon is an aggravating feature.
I expect that the court will have wrestled with that guideline and they can hardly be severely criticised for the actual sentence they reached. It is well within the permissible range of sentencing and, after all, it is a statutory requirement that sentencing guidelines have to be followed unless it would be contrary to the interests of justice to do so. If a court departs from a guideline then it must state its reasons for doing so.
For my part - and I emphasize that this is only my view - there were good reasons here to depart from the guideline. It is perhaps by luck alone that Gallagher was not very seriously injured or even killed. Furthermore, the Chairman of the court reportedly indicated that there is serious concern about violence in Wigan - "It was a vicious attack - we are sick and tired of seeing incidents like this in Wigan town centre - You kicked his head as if it were a football, he had no way of defending himself and he did not know it was even coming" Nevertheless, the court was lenient with Zavjaloves because he had shown remorse and it was an isolated incident and he had previous good character.
It would be interesting to know how the compensation will be paid. A compensation order would not have been made had Zavjaloves been actually sent to prison. Usually, the court orders monetary payment at £x per fortnight (or some other specified time period). It may therefore be a very long time before Mr Gallagher receives the full compensation. It is of course open to Mr Gallagher to sue Mr Zavjaloves in the civil court but the compensation award would be taken into account in any damages awarded.
Notes:
1. Aims of sentencing are set out in the Criminal Justice Act 2003 section 142 - (a) punishment of offenders; (b) reduction of crime (including its reduction by deterrence) .... (c) protection of the public ...
2. It is the normal practice to reduce the sentence if a guilty plea is entered. For a guilty plea at the earliest possible stage, the reduction will be one-third. Thus, 6 months imprisonment reduced to 4.
Reduction in Sentence for a Guilty Plea - revised 2007
It is worth noting paras 5.3 and 5.4 for cases where the prosecution case is overwhelming.
It is worth noting paras 5.3 and 5.4 for cases where the prosecution case is overwhelming.
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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...
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