Zoth, R. v

In a sentencing appeal, the guideline range is not an inflexible ceiling. A sentence above that range may be justified by cumulative aggravating features, including relevant previous convictions, intoxication, deliberate arming for planned violence, displaying the weapon and persisting despite intervention. The sentencing judge should explain the departure and account for guilty-plea credit, delay and totality. Consecutive sentences may be appropriate for separate offences, particularly where later offences were committed on bail. Where those matters have been addressed and the aggregate sentence is just, proportionate and not manifestly excessive, there is no proper basis for appellate intervention.

The appellant was sentenced by the Crown Court at Preston on 23 October 2020 to 28 months’ imprisonment for possessing a bladed article contrary to section 139(1) of the Criminal Justice Act 1988, assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, and racially aggravated harassment, alarm or distress contrary to sections 28 and 31 of the Crime and Disorder Act 1998.

The appellant renewed an application for leave to appeal against sentence after refusal by a single judge. He principally challenged the 16-month sentence for possession of the knife, which exceeded the ordinary guideline range, and argued that the total sentence was manifestly excessive. The central issues were whether the judge was entitled to sentence above the guideline range and whether the consecutive sentences produced a disproportionate total.

Spencer J, giving judgment for the court, refused the renewed application for leave to appeal.

1. The sentencing judge was entitled to impose 16 months for possession of the bladed article, despite the guideline starting point of six months and range extending to 12 months. The guideline range was not an inflexible ceiling. Departure above it was justified by the appellant’s serious history of possessing weapons, his intoxication, the deliberate decision to arm himself before travelling to threaten a person, the display of the large knife to the taxi driver, and his persistence despite being urged to desist.
2. The sentencing judge had properly taken account of the late guilty plea and reduced credit. He had explained why the offence warranted a sentence beyond the normal range. The single judge was therefore right to regard the offence as falling within the relevant high-culpability category and to uphold the sentence.
3. The nine-month sentence for assault occasioning actual bodily harm and the three-month sentence for racially aggravated abuse were unexceptional. The assault involved a bite and repeated punches, and both offences were aggravated by intoxication and the fact that they were committed while the appellant was on bail. The racist abuse was directed at a police officer performing his duty.
4. Consecutive sentences were appropriate. The sentencing judge had considered current prison conditions, delay, the appellant’s letter expressing an intention to change, and totality. The resulting 28-month sentence was just and proportionate and could not be described as manifestly excessive. There was no arguable merit in the proposed appeal.

• Court of Appeal (Criminal Division): On 24 March 2021, the court refused the renewed application for leave to appeal against sentence.
• Single judge: Refused the initial application for leave to appeal.
• Crown Court at Preston: On 23 October 2020, sentenced the appellant to a total of 28 months’ imprisonment.