R v Perrie Michael Fisher

A sentencing judge’s erroneous placement of a violent-disorder offence in a higher guideline category does not itself make the resulting sentence manifestly excessive. The appellate court must assess the sentence that would properly have been imposed in the correct category, taking account of all culpability and harm factors, statutory aggravation and mitigation. A properly imposed sentence does not ordinarily become wrong in principle merely because associated offenders are later given more lenient sentences by another judge.

The applicant pleaded guilty to violent disorder contrary to section 5(1) of the Public Order Act 1986 and to failing to surrender to custody contrary to section 6(1) of the Bail Act 1976. The Magistrates’ Court committed him for sentence.

At Winchester Crown Court, the judge imposed 28 months’ imprisonment for violent disorder and one month consecutively for the bail offence. The applicant challenged only the violent-disorder sentence. He contended that the judge had wrongly treated the offence as Category 1A under the sentencing guideline and that his sentence was unfairly disparate from sentences later imposed on other participants in the same disorder.

1. Leave to appeal was refused. The total sentence was 29 months’ imprisonment, but the challenge concerned only the 28-month sentence for violent disorder.
2. The court had reservations about the Crown’s concession that the offence should not have been categorised as Category 1A. It nevertheless considered the sentence on the assumption most favourable to the applicant, namely that the proper starting point was Category 1B. The two level-B culpability factors, four Category-1 harm factors and the prominent statutory aggravating factor of racial hostility justified a substantial movement from the three-year starting point. A sentence of three years and six months before plea credit was properly available within the Category-1B range. The 28-month sentence after full one-third credit was therefore not manifestly excessive.
3. The court applied the approach in Cush and others [2024] EWCA Crim 1382. A categorisation error does not require sentence reduction where the sentencing factors would justify the sentence under the correct category. The court distinguished the rival-group context considered in Cush and others, observing that the present disorder was one-way violence directed at a hotel because vulnerable migrant families lived there.
4. There was no unfair disparity. Applying the inquiry identified in Fawcett (1983) Cr. App. R. (S.) 158, fully informed right-thinking members of the public would not conclude that the administration of justice had gone wrong merely because a different judge later imposed more lenient sentences on associated offenders. The applicant’s sentence was correct in principle; any apparent leniency in later sentences did not justify reducing it. The court also noted that the applicant had been fortunate to receive full plea credit, in light of his failure to attend the earlier Magistrates’ Court hearing.

• Court of Appeal (Criminal Division). Leave to appeal against the violent-disorder sentence was refused.
• Crown Court at Winchester. The applicant was sentenced to 28 months’ imprisonment for violent disorder and one month consecutively for failing to surrender to custody.
• Magistrates’ Court. The applicant pleaded guilty and was committed to the Crown Court for sentence.