Pullinger, R. v

A racially aggravated common assault may cross the custody threshold because of serious racial abuse, even where the physical assault considered alone would probably not warrant immediate custody. Sentencing must reflect both the violence and the racial aggravation, while giving proper weight to limited physical harm, lack of planning, effective previous good character and other mitigation.

The court may use notional components to explain its sentencing assessment, but the sentence imposed is a single sentence for the aggravated offence. A sentence which overstates the physical-assault element may be reduced while retaining an appropriate element for racial aggravation.

The appellant was convicted at Kingston-upon-Thames Crown Court, by an 11-to-one majority, of racially aggravated common assault upon a public-house doorman. During an incident involving the appellant's brother and other men, the appellant tackled the complainant from behind, struck him once and used serious racist abuse.

The Recorder imposed six months' imprisonment, identifying four months for the assault and two months for racial aggravation. The appellant appealed against sentence, contending that immediate custody was wrong in principle and that the term was manifestly excessive.

The central issue was the proper sentence for an offence in which the racial aggravation was grave but the physical assault was limited and the appellant was effectively of previous good character.

1. Appeal allowed. The court substituted a sentence of three months' imprisonment for the six-month sentence imposed below.

2. The Recorder was entitled to find that the custody threshold had been crossed. The racist abuse was crude, distressing and particularly offensive to the complainant. It materially aggravated the attack. The absence of a guilty plea and the appellant's failure to recognise the full gravity of his conduct were also relevant sentencing considerations.

3. However, the physical assault comprised a tackle and a single blow, caused no significant injury and was spontaneous. In light of the appellant's effective previous good character and the other mitigation, the assault by itself would very likely not have attracted custody, and certainly not four months' imprisonment. The court also had regard, though only marginally, to the 15-month delay before trial for which the appellant was not responsible.

4. The court treated a one-month element for the assault and a two-month element for racial aggravation as producing the proper overall sentence. Those elements were explanatory only: the substituted term was one single sentence of three months for the racially aggravated common assault.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted three months' imprisonment.
• Crown Court at Kingston-upon-Thames: The appellant was convicted of racially aggravated common assault and sentenced to six months' imprisonment.