Neutral Citation Number:
[2010] EWCA Crim 756
Case No:
201001129 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 31st March 2010
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE JACK
RECORDER OF REDBRIDGE
HIS HONOUR JUDGE RADFORD
(Sitting as a judge of the Court of Appeal Criminal Division)
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R E G I N A
v
JOHN PULLINGER
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Computer Aided Transcript of the Stenograph Notes of
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(Official Shorthand Writers to the Court)
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Mr A Rose
appeared on behalf of the
Appellant
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J U D G M E N T
1.
LORD JUSTICE ELIAS: On 21st January 2010, in the Crown Court at Kingston-upon-Thames before Mr Recorder Staite, the appellant was convicted by majority of 11 to one on count 1 of racially aggravated common assault. He was sentenced on 22nd February to six months' imprisonment (four months indentified for the assault and two for the racist element). He now appeals against that sentence by leave of the single judge.
2.
The background is as follows. The complainant, Wayne Parillon, worked as a doorman at a public house in Fulham Road. The appellant spent the evening of 11th October 2008 drinking in that pub with his brother and former workmates. At midnight the staff asked patrons to finish their drink and leave the premises. The appellant's brother tried to leave with a full pint glass. The complainant put his arm across the doorway to prevent him from leaving and told him that he could not take the glass outside. The appellant's brother tried to push past him. The complainant grabbed him round the waist. A scuffle followed and the complainant took the appellant's brother to the ground. At that point the appellant rugby-tackled the complainant from behind and then struck the complainant on the head, just behind the right ear. Another doorman intervened. The complainant got to his feet and a third male attacked the complainant. The complainant went to the ground again. He took the appellant to the ground with him. The appellant went head first to the ground. The complainant then asked another man, who seemed to know the appellant's group, to get them to calm down. Initially they did so, but the aggression flared up again and two other men became involved.
3.
As the incident developed the appellant continued to shout racist abuse, including "You fucking nig nog. I'm going to fucking smash you. Don't touch my fucking brother, you fucking nigger". He then placed his left hand across his mouth, stretched out his right arm and shouted "Heil Hitler". One of the others joined in the racist abuse.
4.
The group left on hearing approaching police sirens. The appellant was identified and arrested. He had a small cut and swelling on his forehead. He said, "The negro bouncer did it to me". In interview he said he had a lot to drink and his recollection of events was sketchy, but he denied assaulting the complainant and denied using racist language.
5.
There was a pre-sentence report before the judge in which the appellant attributed the offence to the significant quantity of beer he had consumed. He denied being racist. He lived with a wife and two daughters and had been self-employed most of his life. He was paying off his debts. He had considerable financial worries and the pressure of the court case had led to some stress-related health problems. It was noted that he was generally a well-respected and valued member of the community. There was a low risk of re-conviction and the recommendation from the writer of the report was for a suspended sentence with unpaid work, a curfew, and prohibited activity requirements. The appellant had only one previous conviction some 20 years earlier, when he was given a conditional discharge.
6.
The judge observed, when passing sentence, that the defendant had displayed both violence and racism to a serious extent in this incident. The previous conviction, he thought, was irrelevant. He recognised that the appellant was no doubt a law-abiding person, and there were a number of references attesting to his positive good character, but his ongoing denial and the fact that he blamed the victim for his injuries indicated a failure to recognise the seriousness of his actions. The judge had no doubt that the custody threshold was crossed. The actions were so serious that a fine or community order would not be appropriate. He took into account the guidelines of the Sentencing Guidelines Council.
7.
It is said in grounds of appeal that the judge failed to pay proper heed to that guidance. The custodial, rather than a suspended, sentence was, it is submitted, wrong in principle, and even if the custodial sentence was in principle appropriate, six months was manifestly excessive. The judge had reached that sentence by giving four months for the assault and two months for the racial element. It was submitted that the starting point of four months was out of line with the recommendations of the Sentencing Guidelines Council for assaults of this nature. Normally for common assault there will only be a custodial sentence if two aggravating features are present, and here it was said that there was only one, namely the fact that the offence was part of a group action.
8.
There were also, it was submitted, a wide range of mitigating circumstances: the appellant did not instigate the incident; it was spontaneous and not planned; the assault only involved a rugby-tackle and a single blow; there was no significant injury; the act was wholly out of character from a man who was, to all intents and purposes, a man of good character; and finally it was said that it was likely to have a devastating influence on the family.
9.
We are fully satisfied the judge was right to say that the offence did cross the custody threshold, given the racial element of this attack. The case has certain similarities with the case of
Slater
[2006] 1 Cr App R (S) 129
, where the sentence for the assault was treated as notional and four months was given for the racial element where the court found that the assault itself would not have merited a custodial sentence. The racial element in this case was crude, it was distressing, and the language was particularly offensive to the complainant. Furthermore, of course, the appellant did not have the benefit of a guilty plea, and nor has he recognised the full gravity of the offending. Nevertheless, we are satisfied that, particularly for someone of effectively previous good character, the assault itself would very likely not on its own have attracted a custodial sentence, and certainly not a sentence of four months. We bear in mind the factors identified by counsel and also –although this is of marginal relevance – the fact that,for reasons which the defendant is not to blame,he had to wait some 15 months before the trial took place.
10.
In our view, an appropriate sentence, taking account of all these elements, is one of three months. We achieve this by a reduction of the element for the assault to one month with the two months for the racial aggravation remaining as the judge identified. Of course, those are not technically separate sentences, it is a single sentence of three months for this offence and we substitute that for the six months given by the court below.