No. 2008/00176/A4
Neutral Citation Number: [2008] EWCA Crim 904

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  13  March  2008

B e f o r e:

LORD  JUSTICE  MOORE-BICK

MR  JUSTICE  KING

and

SIR  RICHARD  CURTIS
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R E G I N A

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SISTAS  BLAZYS
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Mr D Page appeared on behalf of the Appellant

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J U D G M E N T
Thursday  13  March  2008

LORD JUSTICE MOORE-BICK:  I will ask Mr Justice King to give the judgment of the court.

MR JUSTICE KING:
1.  This is an appeal against sentence with the leave of the single judge.  On 4 December 2007, at the Crown Court at Snaresbrook, the appellant was sentenced by His Honour Judge Khayat QC to 12 months' imprisonment for an offence of affray.

2.  The offence related to events which occurred two months earlier, on the late evening of 10 October 2007 outside Mile End underground station.  The events were captured on CCTV.  The appellant had pleaded guilty in the magistrates' court on 30 October and had been committed to the Crown Court for sentence.

3.  The appellant is 26 years of age.  He has no previous convictions.  He is a Lithuanian national who had been working in the construction industry in London since 2005.  He was sentenced together with three co-accused Lithuanians, each of whom received the same sentence.  

4.  The prosecution case was that all four defendants approached a lone female who was waiting at a bus stop.  She was not grateful for their attention.  An unknown man intervened and asked the four to leave her alone.  They turned on the man and attacked him.  The CCTV showed them assaulting him with a barrage of punches and a small number of kicks.  While on the ground he was struck and stamped upon.  When he got to his feet and crossed the road he was pursued.  The unfortunate man fled the scene.  However, he returned to collect a bag which he had dropped.  He was then attacked again by the group.  Counsel on behalf of the appellant says that there was evidence that the man himself was aggressive at this stage which is perhaps hardly surprising.  At some point the man was pushed and cornered against the side of a stationary bus, where he was punched and kicked again.

5.  The police arrived.  The appellant and his co-accused were arrested.  The victim did not wish to make a complaint and there was no evidence from him.  A police officer recorded him as having some injuries, but there was no medical examination.  The judge accordingly sentenced on the basis that the victim suffered minor cuts, given blood had been seen on his face, and that there was inevitable bruising caused by the punching and stamping.

6.  It is clear that the appellant and his co-accused had been drinking heavily.  To the police the appellant said that he had been at home with one of the others.  They had initially drunk a bottle of vodka and he did not remember anything after that.  In the pre-sentence report the appellant is reported as saying that he had been drinking since about 7pm and had consumed two bottles of vodka with his colleagues, as well as three cans of beer.  He only realised he had committed the offence when he woke up in the police cell.

7.  The judge understandably treated the consumption of alcohol and the disinhibiting effect it had had upon the appellant as an aggravating rather than a mitigating feature of the offending.

8.  We turn to the short grounds of appeal.  Realistically they relate only to the length of the sentence.  Mr Page on behalf of the appellant concedes that a custodial sentence was warranted on the facts of the affray which we have rehearsed.  This was, in our judgment, a concession properly made.  Mr Page rightly summarised the aggravating features of the offending as involving a night time offence in a public place.  It was an unprovoked and sustained group attack on an innocent member of the public.

9.  The principal submission made by Mr Page begins with the proposition that, given that the appellant was entitled to full credit for his early plea (ie a discount of one-third), the sentence of twelve months' imprisonment passed upon him must reflect a starting point before plea of 18 months.  Although the judge did not expressly confirm this to be the case, we agree that this must be correct.  It is then submitted that such a starting point is too high for this particular affray which, although serious in the way we have indicated and fully merits a custodial sentence of some length, was nonetheless spontaneous and unpremeditated and gave rise to only minor injuries.

10.  In support of this submission our attention has been drawn to a number of decisions of this court.  They are inevitably fact-specific and do not really assist us.  We were referred, however, to R v Holmes and Holmes [1999] 2 Cr App R(S) 100, in which this court said that, although a custodial sentence was a necessary deterrent for the protection of the public in affrays of this nature committed at night in public places involving assaults on innocent victims, the question on appeal was whether the necessary custodial sentence could "be shorter, consonant with the interests of justice and the duty of the courts".  The further general point is made that in any event the sentence passed took insufficient account of the appellant's good character and his own personal mitigation.  He had shown remorse; he had not previously served a custodial sentence; and he would inevitably find prison difficult, not least because of his language problems.

11.  We have considered these submissions with care.  Ultimately, although not without some hesitation, we have been persuaded by them.  The maximum sentence for affray is three years.  We consider in these circumstances and on these facts that the starting point of 18 months was too high.  Accordingly we quash the sentence of 12 months' imprisonment and substitute one of eight months' imprisonment.  To this extent this appeal is allowed.