A sentence of nine months for affray was manifestly excessive, as the judge exceeded the legitimate bounds of his discretion when he sentenced on the basis the defendant had uttered racist comments, as the defendant had been acquitted of racially aggravated assault.Appeal, with leave of the single judge, against a sentence of nine months' imprisonment following a conviction for affray at Maidstone Crown Court on 9 October 2003. The victim ('V') was the owner of an Indian restaurant which was known to serve late drinks. The appellant ('D') and others went to the restaurant but were told that they would only be served alcohol if they bought a meal. D attempted to help himself to a drink and V tried to stop him. A scuffle broke out involving D and his friends, V was punched and it was alleged D threw a ceramic elephant at V saying "take that you paki". Plates and glasses were thrown and ?1,300 of damage was caused. When D was arrested he accepted he was present but said he played no part in the violence. At trial he was acquitted of racially aggravated assault occasioning actual bodily harm and of common assault. When sentencing the judge stated he was satisfied that D had been making racist remarks and would increase the sentence accordingly. D appealed sentence on the grounds it was manifestly excessive as the judge was not entitled to conclude the affray was racially motivated because D was acquitted of racially aggravated assault.HELD: (1) As a matter of generality a sentencing judge could take his own view on the facts of any incident, provided he fully reflected the verdict of a jury, it was a matter for the judge to determine what took place. (2) In the circumstances it was harsh to conclude, to the criminal standard, that D had uttered racist comments in the context of the general affray after being acquitted of throwing the ceramic elephant. The judge exceeded the legitimate bounds of his discretion the sentence passed was manifestly excessive and would be quashed. A sentence of six months would be substituted.Appeal allowed.

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