Hegarty, R. v

An attack made in revenge against a person who has given evidence at a criminal trial is a serious offence. The need to protect witnesses and uphold their public duty may make custody unavoidable. Sentencing must nevertheless remain proportionate to the particular offence and offender. An early guilty plea, genuine remorse, previous good character, low risk of reoffending and a first experience of custody may make a substantial custodial term manifestly excessive.

The appellant pleaded guilty at the first opportunity before magistrates to taking revenge on a witness, contrary to section 51(2) of the Criminal Justice and Public Order Act 1994. He was committed for sentence and, at Birmingham Crown Court, received twelve months’ detention in a young offender institution.

The offence followed the conviction and imprisonment of the appellant’s brother for attempted rape. The appellant confronted the complainant, who had given evidence at that trial, spat at her and assaulted her. He appealed, contending that the sentence was manifestly excessive despite his prompt plea and personal mitigation.

1. Appeal allowed. The court quashed the twelve-month term of detention and substituted four months’ detention.

2. The offence crossed the custody threshold. It was an attack on a young woman because she had performed her public duty by giving evidence at a criminal trial. Witnesses must be protected from such retaliation, and offences of that nature are sufficiently serious to justify custody.

3. That need for deterrent protection did not remove the requirement for a sentence proportionate to the individual offence and offender. The appellant had pleaded guilty at the first opportunity, showed genuine remorse, had no previous convictions, had stable family circumstances, worked towards qualification as an electrician and presented a low risk of reoffending.

4. The assault was impulsive and emotional, committed while the appellant was affected by alcohol, and regretted immediately. It was also his first court appearance and first period in custody. In those circumstances, although detention was justified, twelve months was manifestly excessive. A four-month term properly reflected both the gravity of retaliating against a witness and the substantial mitigation.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted four months’ detention for the twelve-month term.
• Birmingham Crown Court: On 11 May 2006, imposed twelve months’ detention in a young offender institution following committal for sentence from the magistrates.
• Magistrates’ court: The appellant pleaded guilty at the first opportunity and was committed for sentence.