R v Thomas Smith & Ors

In sentencing for violent disorder, a targeted group attack may justify placing culpability at the highest relevant level, particularly where weapons are used and the attack is prolonged. Strong personal mitigation, remorse, previous good character, rehabilitation prospects, delay and absence of further offending do not necessarily require suspension. Immediate custody remains permissible where only it can achieve appropriate punishment for persistent and violent offending. Co-offenders may receive the same sentence where their joint participation provides no proper basis for distinction.

The three applicants, a father and his two sons, pleaded guilty before magistrates to violent disorder and were committed for sentence under section 14 of the Sentencing Act 2020. The Crown Court at Birmingham imposed two years’ imprisonment on each.

The applications for leave to appeal against sentence were referred to the full court. The applicants argued that immediate custody was excessive and that their sentences should have been suspended, relying on their strong personal mitigation, rehabilitation prospects and the period spent in the community without further offending.

The court refused all three applications for leave to appeal against sentence.

1. The offending involved at least category 2 harm because Mr Osbourne sustained serious injury. Serious acts of violence constituted level B culpability. However, the applicants had acted together in a targeted group attack, which was a level A culpability factor capable of elevating the offending to category 2A. The category 2A starting point was three years’ custody.

2. The use of bats and a bottle was a serious aggravating feature, and the attack was prolonged. Weighing those matters against the strong mitigation, the sentencing judge was entitled to impose three years before applying the one-third reduction for guilty pleas. The resulting two-year sentences were neither excessive nor wrong in principle.

3. The judge was also entitled to conclude that immediate custody was necessary. Although realistic rehabilitation prospects and strong personal mitigation were factors indicating that suspension might be appropriate under the Imposition guideline, the judge had plainly considered those matters. In light of the persistence and violence of the group attack, appropriate punishment could be achieved only by immediate custody.

4. The period between the offending and sentence, during which the applicants committed no further offences, was relevant mitigation. Its force was reduced, though not eliminated, because the applicants had made no comment in interview. There was no proper basis for distinguishing between the three applicants, who had participated together in the attack.

1. Court of Appeal (Criminal Division): applications for leave to appeal against sentence refused: [2022] EWCA Crim 1835.
2. Crown Court at Birmingham: each applicant was sentenced to two years’ imprisonment on 14 September 2022.
3. Magistrates’ court: the applicants pleaded guilty to violent disorder and were committed for sentence under section 14 of the Sentencing Act 2020.