Practice and Procedure

R v B (2003)

PUBLISHED February 5, 2003

The fact that the judge passed a lesser sentence on a co-defendant who took a more serious part in an affray was not a reason to interfere with the custodial sentence passed on the appellant, which was not manifestly excessive.Appeal against sentence with leave of the single judge. On 15 October 2002 the defendant ('B') pleaded guilty to affray and on 13 November 2002 was sentenced to eight months in a Young Offender's Institution. B's co-defendant received a community punishment order of 120 hours. On 12 May 2002 D had entered into a property to confront a person who had indecently assaulted his sister at a nightclub. The victim was seized by his shirt and threatened. B then realised he had the wrong person and shouted threats to another person present. The sentencing judge stated that a custodial sentence was necessary as it was a serious crime and an innocent man had been injured in his own home. B appealed sentence on the grounds that: (i) it was disproportionate to the sentence received by the co-defendant who had taken a more serious role; (ii) he had no previous convictions, other than a caution for disorderly behaviour; (iii) he had been provoked because of the indecent assault on his sister; and (iv) pre-sentence reports highlighted B's depression and his vulnerability and recommended a community rehabilitation order.HELD: (1) The judge had been right to conclude that a custodial sentence was appropriate. (2) The judge was entitled to take a different course in relation to the co-defendant even though she took a more serious part. That was not a reason for this court to interfere with B's sentence. (3) When taking into account all the circumstances of the case the sentence was not manifestly excessive. It was a particularly ugly incident and a period of discipline was likely to assist B.Appeal dismissed.