R v Daniel Berriman

On a sentence appeal, the basic offence should be assessed under the applicable sentencing guideline before any racial-aggravation uplift is applied. A highly culpable and harmful offence may properly be placed at the top of its basic category range. A significant racial element may justify a medium uplift, but the uplift must remain proportionate. Alternative charges reflecting the same conduct should not attract separate penalties. The totality principle also prohibits a consecutive term where an additional count represents no separate criminal act or overlaps materially with the lead offence. The appellate court may quash the offending sentences, substitute no separate penalty, and adjust the overall sentence.

After pleading guilty to seven offences, the appellant was sentenced by the Crown Court at Sheffield to an aggregate term of 32 months' imprisonment. The charges included racially aggravated common assault, criminal damage, two breaches of a restraining order, common assault, harassment contrary to the Public Order Act 1986, and racially aggravated harassment contrary to the Crime and Disorder Act 1998.

He appealed against the sentence for the racially aggravated common assault and against the sentences imposed for the later hospital incident. The issues were whether the basic sentence and racial uplift were excessive, whether alternative harassment charges should both have attracted sentences, and whether a consecutive sentence for common assault respected totality.

1. Racially aggravated common assault. The Recorder was entitled to treat the basic offence as one of high culpability and high harm, to impose custody, and to place the sentence at the top of the applicable category range. The hospital setting, the victim's security role, the sustained attack, the punch, and the interference with safety equipment justified that approach.
2. The racial abuse justified a significant uplift. The sentencing guideline identified high, medium and low levels of uplift. The racial aggravation formed at least a significant proportion of the offence and warranted a medium-level uplift. However, the uplift imposed was too high. The sentence of 14 months' imprisonment, after credit for the guilty plea, was quashed and replaced by 12 months' imprisonment.
3. Alternative harassment charges. The harassment and racially aggravated harassment charges were alternative charges for the same conduct. Imposing a separate sentence for the harassment offence was wrong in principle. That sentence was quashed and replaced with no separate penalty. The relevant offences were identified by reference to the Public Order Act 1986 and the Crime and Disorder Act 1998.
4. Totality and common assault. The offences arising from the later hospital incident overlapped and were presented as one course of conduct. The court was uncertain whether the common assault represented any separate criminal act. In any event, a consecutive sentence was disproportionate and contrary to totality. The two-month consecutive term was quashed and replaced with no separate penalty.
5. The sentences on the remaining charges were unchanged. The aggregate sentence was reduced from 32 months to 28 months' imprisonment. The appeal was allowed to that extent.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 574, the appeal against sentence was allowed in part. Sentences for the racially aggravated common assault, harassment and common assault were varied, reducing the aggregate term to 28 months' imprisonment.
• Crown Court at Sheffield: The Recorder sentenced the appellant on seven offences to a total of 32 months' imprisonment.