Racially or Religiously Aggravated Common Assault - (pre June 2011 edition)
Date produced: 29 June 2009
Title: Offences Against the Person
Offence: Racially or Religiously Aggravated Common Assault
Legislation: Crime and Disorder Act 1998 section 29(1)(c)
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: 2 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
A different approach applies to common assault, which defines where thresholds are crossed by reference to the type and number of aggravating factors. Culpability is the initial factor in determining seriousness. Factors indicating higher culpability are most relevant in cases of common assault where no injury may have been inflicted but the victim was put in fear of violence. The list is not intended to be exhaustive. Where aggravating factors indicating a more than usually serious degree of harm are present, they influence the determination of the appropriate sentence within the bracket of options available where a particular threshold has been crossed. Not all aggravating factors carry the same weight and flexibility is required to avoid an over-prescriptive approach to when a threshold is passed.
Common aggravating factors:
Factors indicating higher culpability:
- Use of a weapon to frighten or harm the victim
- Offence was planned or sustained
- Head-butting, kicking, biting or attempted strangulation
- Offence motivated by, or demonstrating, hostility to the victim on account of his or her sexual orientation or disability
- Offence motivated by hostility towards a minority group, or a member or members of it
- Abuse of a position of trust
- Offence part of a group action
Factors indicating a more than usually serious degree of harm:
- Injury
- Victim is particularly vulnerable or providing a service to the public
- Additional degradation of the victim
- Offence committed in the presence of a child
- Forced entry to the victim's home
- Offender prevented the victim from seeking or obtaining help
- Previous violence or threats to same victim
Common mitigating factors:
- Provocation
- Single push, shove or blow
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.
The same table covers both the simple and racially and religiously aggravated offences. Aggravating feature 5 (above) confirms the suitability of an increased sentence (see also section below).
- Nature of failure & harm: The custody threshold normally is passed where two or more aggravating factors indicating higher culpability are present
Starting point: Custody - Nature of failure & harm: The community sentence threshold normally is passed where one aggravating factor indicating higher culpability is present
Starting point: Community Order - Nature of failure & harm: Assault where no injury caused
Starting point: Fine
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
Recent Decisions reported in CSP at B 2-5.3B
In the majority of reported cases, the Court of Appeal upheld sentences of 7-12 months
Decision predating the SGC definitive guideline
R v Gilbert [2005] 2 Cr.App.R.(S.) 108 Incident at petrol station. Somebody unable to obtain cash from a machine kicked a box nearby. A Turkish man drove onto the forecourt. Offender shouted "What are you doing in England, you fking Paki?" at the victim, who ignored him. Offender ran over to him, shouted at him and punched him in the stomach and head. Struggle, victim picked up pump nozzle to protect himself. Guilty plea. Sentence reduced to 10 months on basis of four months plus six months for the racial aggravation.
Ancillary Orders:
- Compensation
- Exclusion order
- Drinking banning order
- Anti-social behaviour order
- Football banning order
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