Racially or Religiously Aggravated Actual Bodily Harm (ABH) - (pre June 2011 edition)

Date produced: 29 June 2009
Title: Offences Against the Person
Offence: Racially or Religiously Aggravated Actual Bodily Harm
Legislation: Crime and Disorder Act 1998 section 29(1)(b)
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: 7 years imprisonment
Sentencing range: Specified violent offence

Relevant Sentencing Guidelines

The SGC definitive guideline 'Assault and Other Offences Against the Person' applies to offenders sentenced on or after 3 March 2008.

Seriousness, culpability and harm

The primary factor is the seriousness of the offence committed; that is determined by assessing the culpability of the offender and the harm caused, intended or reasonably foreseeable.  Consider the SGC guideline 'Overarching Principles: Seriousness' for general factors when assessing seriousness, culpability and harm.  The SGC Assaults guideline states (at para. 22) that use of a weapon or part of the body such as the head usually increases seriousness, and (at para.23) that relative seriousness is based on whether the assault was pre-meditated or spontaneous and on the degree of harm that resulted.

Aggravating and mitigating factors

The most common factors likely to aggravate assaults are:

• planning of an offence;
• offenders operating in groups or gangs;
• deliberate targeting of vulnerable victim(s);
• offence committed against those working in the public sector or providing a service to the public;
• use of a weapon to frighten or injure victim;
• a sustained assault or repeated assaults on the same victim;
• circumstances such as isolated location, taking advantage of poor lighting, vulnerability of victim

The most common mitigating factor is:

• provocation
• unintended injury

SGC guidelines

The guidelines set out below apply to a first time adult offender who has been convicted after a trial, and on the basis that he/she has not been assessed as dangerous.

• Type/nature of activity: Pre-meditated assault EITHER resulting in injuries just falling short of GBH OR involving the use of a weapon  
  Starting point: 30 months custody  
  Sentencing range: 2 - 4 years custody
• Type/nature of activity: Pre-meditated assault resulting in relatively serious injury  
  Starting point: 12 months custody
  Sentencing range: 36 weeks - 2 years custody
• Type/nature of activity: Pre-meditated assault resulting in minor, non-permanent injury  
  Starting point: 24 weeks custody
  Sentencing range: 12 - 36 weeks custody
• Type/nature of activity: Other assault resulting in minor, non-permanent injury 
  Starting point: Community Order (HIGH) 
  Sentencing range: Community Order (MEDIUM) - 26 weeks custody

If the offence was committed in a domestic context, consider the SGC guideline 'Overarching Principles: Domestic Violence' (see Archbold at K-82)

If the victim is a child, consider the SGC guideline 'Overarching Principles: Assaults on children and Cruelty to a child'.

Aggravation based on victim's race, religion, disability or sexual orientation

A court should firstly determine the appropriate sentence without taking account of the aggravated element and then make an addition to the sentence.

If proved, the following factors can be taken to indicate a high level of aggravation whether based on the victim's race, religion, disability or sexual orientation:

The offender's intention:

• the aggravated element was a planned part of the offence;
• the offence was part of a pattern of offending by the offender;
• the incident was deliberately set up to be offensive or humiliating to the victim or to the group of which the victim is a member.

The impact on the victim or others:

• the nature, timing or location of the offence was calculated to maximise the harm or distress it caused;
• the offence is shown to have caused fear and distress throughout a local community.

At the lower end of the scale, the aggravated element might be less serious if:

• it was limited in scope or duration;
• the motivation for the offence was not hostility based on the victim's race, religion, disability or sexual orientation, and the element of such hostility or abuse was minor or incidental.

Relevant Sentencing Case Law

The only former guideline case is R v Saunders [2000] 2 Cr.App.R.(S) 71
Per Rose LJ: "One of the most important lessons of this century, as it nears its end, is that racism must not be allowed to flourish.  The message must be received and understood, in every corner of society, in our streets and prisons, in the services, in the workplace, on public transport, in our hospitals, public houses and clubs, that racism is evil.  It cannot co-exist with fairness and justice.  It is incompatible with democratic civilisation.  The courts must do all they can, in accordance with Parliament's recently expressed intention, to convey that message clearly, by the sentences which they pass in relation to racially aggravated offences.  Those who indulge in racially aggravated violence must expect to be punished severely, in order to discourage the repetition of bad behaviour, by them or others."

Decisions reported in CSP at B2-4.3H

Ancillary Orders:

• Compensation
• Exclusion order
• Drinking banning order
• Anti-social behaviour order
• Football banning order

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