O'Leary v R

Where an offender is sentenced for an offence outside the racially aggravated offences, Criminal Justice Act 2003 section 145 requires racial aggravation to increase seriousness if it is proved to the criminal standard. A separate conviction for a racially aggravated offence is not invariably necessary. The sentencing court may rely on conduct scrutinised at trial where doing so is consistent with the jury’s verdict and the offender had a fair opportunity to challenge the evidence.

The appellant pleaded guilty to assault with intent to rob and two offences of unlawful wounding. He was acquitted after trial of more serious counts. The offences involved knife attacks on two shop workers, one of whom was threatened because he was Muslim.

The Crown Court at Blackfriars imposed a total sentence of eight years’ imprisonment. The appellant appealed against sentence. He challenged the guilty-plea discount, the categorisation of one wounding offence, the use of racial motivation as an aggravating factor without a conviction under section 29 of the Crime and Disorder Act 1998, and totality.

The central issue was whether racial aggravation could properly increase sentence in those circumstances.

1. The appeal was dismissed. The court also refused renewed permission to appeal on the guilty-plea and guideline-categorisation grounds, and refused permission on the totality ground.

2. The sentencing guidelines normally permit a one-third reduction for a guilty plea at the first reasonable opportunity. They also permit a lower reduction where the prosecution case is overwhelming. CCTV made the prosecution case overwhelming. A 25% reduction was therefore more generous than the 20% reduction which the judge could have allowed.

3. The unlawful wounding of Mr Islam was properly assessed as category 1. The victim’s vulnerability and the physical and psychological harm indicated greater harm. Premeditation, the collection and use of a knife, intoxication and the appellant’s record indicated higher culpability and further aggravation. The judge could select a pre-plea starting point towards the top of the guideline range.

4. Under section 145 of the Criminal Justice Act 2003, racial aggravation had to be treated as increasing seriousness once proved. The absence of a conviction under section 29 of the Crime and Disorder Act 1998 did not prevent that finding. The appellant had challenged the evidence at trial, the judge could make a finding upon it, and reliance on racial aggravation was consistent with the verdict. The approach was consistent with R v Khan [2009] EWCA Crim 389 and distinguishable from cases where the offender had been sentenced for a different uncharged offence, had been acquitted of the aggravated offence, or had no fair notice and evidential opportunity to meet the allegation.

5. The court added, obiter, that prosecutors should ordinarily include an aggravated assault on the indictment where the evidence supports it. In the exceptional procedural circumstances here, additional alternative counts could reasonably have overloaded the indictment and complicated the jury’s task. The overall sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. Renewed permission applications on two grounds and a further permission application on totality were refused.
• Crown Court at Blackfriars: On 31 March 2015, the appellant received a total sentence of eight years’ imprisonment after guilty pleas to assault with intent to rob and unlawful wounding.