Chikwendu, R. v

For affray sentencing, culpability may properly include an inferred intention to cause fear of very serious violence, assessed from the conduct and surrounding circumstances, including the weapon used and the protective response of those threatened. Threatening police officers acting in the execution of their duty and offending while effectively on bail are aggravating features. Good character remains relevant mitigation.

When deciding whether to suspend custody, the court must weigh the guideline factors as a whole. It must not treat them as a numerical tally. Immediate custody may be justified where appropriate punishment, including deterrence, can be achieved only by imprisonment.

After a trial in the Crown Court at Kingston upon Hull, the appellant was convicted of affray and sentenced to 12 months' immediate imprisonment. He appealed against sentence, arguing that the sentencing judge had placed the offence too high in the culpability range and had failed to give proper consideration to suspension, including the impact of imprisonment during the pandemic.

The central issues were whether the offence was properly placed in category 2A with level A culpability, and whether the factors favouring suspension outweighed the need for immediate custody.

The Court of Appeal dismissed the appeal and held that the 12-month sentence was appropriate.

1. Culpability. The sentencing judge had heard the trial evidence and was best placed to assess culpability. Although the appellant used no threats or aggressive words, the judge was entitled to infer an intention to cause fear of very serious violence from the large knife, the appellant’s threatening conduct and the officers’ protective response. The offence was properly placed in category 2A under the affray guideline, with level A culpability and category 2 harm.
2. Aggravating and mitigating features. Threatening police officers in the execution of their duty was a seriously aggravating factor. The fact that the appellant was effectively on bail was also aggravating. His positive good character was taken into account, as shown by the sentence being no higher than the guideline starting point of 12 months.
3. Suspension. The sentencing judge was required to weigh the factors in the suspended sentence guideline. The exercise was evaluative, not a numerical comparison. There was a realistic prospect of rehabilitation and strong personal mitigation, but no evidence of significant harmful impact on others. The judge was entitled to conclude that appropriate punishment could be achieved only by immediate custody. The absence of a general public risk or a history of poor compliance did not require suspension. The pandemic’s impact was a matter the judge could properly be taken to have considered.
4. Sentencing purposes. The guideline statement that custody serves punishment and deterrence reflected the statutory purposes in section 57 of the Sentencing Act 2020, formerly section 142 of the Criminal Justice Act 2003. Deterrence was therefore a legitimate consideration in deciding whether immediate custody was necessary.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. [2021] EWCA Crim 521
• Crown Court at Kingston upon Hull: Following conviction after trial for affray, the appellant was sentenced by Mr Recorder Singh QC on 22 January 2021 to 12 months' immediate imprisonment.