Asmelash, R. v

In sentencing for violent disorder, the offender’s acts must be assessed within the whole episode of collective violence. Individual conduct may inflame and encourage others, and sentence may properly reflect the combined public harm as well as the offender’s contribution.

A disparity challenge succeeds only where an informed member of the public would conclude that the administration of justice had gone wrong. In deciding whether to suspend a custodial term, the court must balance personal mitigation and rehabilitation prospects against the need for immediate custody as punishment. A serious role in group violence does not inevitably require immediate custody where the balance supports suspension.

The appellant was convicted at the Crown Court at Isleworth of violent disorder arising from a prolonged late-night disturbance outside a public house. More than 20 people became involved. Belts, bottles, bricks and other objects were used, and a customer suffered fractures.

He received 16 months’ imprisonment. Two co-defendants received shorter suspended sentences. The appellant appealed on the grounds that the term was manifestly excessive, that it should have been suspended, and that there was impermissible disparity.

The central issues were whether the sentencing judge’s assessment of the appellant’s role could be challenged, whether the sentence was disproportionate or disparate, and whether the custodial term should have been suspended.

Disposition

1. The appeal against sentence was allowed in part. The court upheld the 16-month term and rejected the disparity ground, but quashed the immediate sentence and substituted 16 months’ imprisonment suspended for two years.

2. The court would not disturb the sentencing judge’s assessment of the respective roles. The judge had heard the evidence and viewed the CCTV footage in its trial context. The appeal court had seen the footage but had not heard that evidence.

3. There was no impermissible disparity. The proper question was whether informed right-thinking members of the public would regard the differing sentences as showing a failure in the administration of justice. The co-defendants’ lesser and suspended sentences were explained by their distinct roles and substantial personal mitigation.

4. The 16-month term was not manifestly excessive. Violent disorder under section 2(1) of the Public Order Act 1986 involved collective violence that caused substantial public fear and serious injury. The appellant’s conduct was a catalyst for the incident: he persisted in seeking entry, invited confrontation, first removed and used his belt as a weapon, and threw punches. Applying the approach in R v Fox and Hicks [2006] 1 Cr App R (S) 17 and R v Gilmour [2011] EWCA Crim 2458, the sentence could reflect both his individual acts and their contribution to the mass disorder.

5. However, the judge should have suspended the term. Strong personal mitigation and a realistic prospect of rehabilitation, including good character, youth and low assessed risk of reoffending, outweighed the competing consideration that punishment might require immediate custody. The substituted suspended sentence was therefore appropriate.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence in part and substituted a suspended sentence: [2019] EWCA Crim 1653.
• Crown Court at Isleworth — convicted the appellant of violent disorder on 4 February 2019 and, on 5 March 2019, imposed 16 months’ immediate imprisonment.