Gregory, R. v

Where offences sentenced separately could properly have been dealt with alongside earlier offending, the later sentence must reflect the proper incremental punishment that would have been imposed on a joint sentencing exercise. Racial aggravation and the fact that conduct passes the custody threshold do not remove the need for a proportionate assessment of the particular offences, including the absence of violence. A consecutive custodial sentence may therefore be manifestly excessive where it exceeds that proper addition to the existing sentence.

The appellant pleaded guilty at Manchester Crown Court to three counts of racially aggravated threatening behaviour directed at a neighbouring family. He had shouted racist abuse on three occasions in May 2005 while on bail for, and subject to a conditional discharge arising from, other racially aggravated offending against the same complainant.

He received concurrent terms of nine months’ imprisonment, ordered to run consecutively to a seven-month sentence imposed for earlier, more serious offending against that complainant. He appealed against sentence with the single judge’s leave. The issue was whether the consecutive nine-month sentence was manifestly excessive.

1. Appeal allowed. The court quashed the nine-month sentence and substituted a sentence of three months’ imprisonment, consecutive to the existing seven-month sentence.

2. The offences were serious racially aggravated offences and clearly crossed the custody threshold. The appellant’s prior conduct, his commission of the offences while on bail, and his conditional discharge for a racially aggravated offence were proper aggravating features.

3. However, the index offences involved no violence. They had also been committed before sentence was imposed for the earlier offences and could properly have been dealt with at the same time.

4. The court assessed the sentence by asking what additional term would have been appropriate had all the offending been sentenced together. The present offences would then have justified an addition of only two or three months. A consecutive term of nine months was therefore manifestly excessive, notwithstanding the racial element.

• Court of Appeal (Criminal Division): allowed the appeal against sentence and substituted three months’ imprisonment consecutive to the existing sentence: [2006] EWCA Crim 362.

• Manchester Crown Court, Minshull Street: on 8 December 2005 imposed concurrent terms of nine months’ imprisonment for three counts of racially aggravated threatening behaviour, consecutive to an existing seven-month sentence.