Setencing at Chippenham

One wonders what one has to do in Chippenham to be sent to prison.
Toby Hayden, in a drunken rage, battered his girlfriend around the face, such that she was virtually unrecognisable, and kicked her in the head while she lay defenceless on the floor.
Not content with this act of unprovoked violence he then attacked two police officers trying to arrest him.

At the time of these assaults Hayden was subject to an eight-week suspended jail sentence for a previous offence of violence.

If the reports in the press and on television are accurate, always a dangerous assumption, then two things disturb me about Chippenham magistrates decision not to send Hayden to prison.

Firstly, it is well established guidance from both the Sentencing Council and the higher courts that a suspended sentence should be activated, the more so when the two crimes, that relating to the suspended sentence and the new one, are similar in character. In this case both were offences of violence and I would have expected the magistrates to activate the suspended sentence in full, which makes the reasoning of the bench, as expressed by chairman Ms D Slate that "We are going to take the hard line by not activating the suspension order" extremely difficult to understand.

Secondly is what the Sentencing Guidelines, which must be followed, unless it would be unjust to do so, have to say about the likely sentence for such offences (assuming all three assaults were charged as Common Assault, although looking at Miss  Butterworth's injuries Assault Occasioning Actual Bodily Harm would seem to have been more appropriate):

Category 1 greater harm and higher culpability
The injury  was certainly more serious than a push or a shove, so greater in the context of a common assault, injury was defiantly caused and it was a sustained attack, all of which indicate greater harm.
Hayden kicked his victim to the head while she lay on the floor, the use of a shod foot indicates higher culpability. We need not consider any of the lesser categories and there are no factors indicating lesser harm or lower culpability.

Range of sentence for a category 1 offence is a low level community order up to 26 weeks in prison, with a starting point, without any additional aggravating features, of a high level community order.
What aggravating features are there?

1. Previous relevant convictions - Hayden had a recent previous conviction for violence, hence the suspended sentence.

2. Location of the offence - in a public place such that other people would be put in fear, the offence was witnessed by at least two members of the public.

3. Failure to comply with other court orders - Hayden was subject to a Supervision Order as part of his suspended sentence, to encourage him not to re-offend.

4. Abuse of a position of trust - the victim was his girlfriend and she had the right to expect he would treat her right, not batter her to the ground.

5. An offence committed under the influence of alcohol - Hayden had earlier drunk shots of tequila, eight pints and three cans of lager.

There are no mitigating features.

With five aggravating features the starting point of a high level community order MUST be elevated to a custodial sentence and I would have expected, taking into account the two additional charges of assault against a constable, that a sentence of 21 weeks imprisonment, reduced by a third to 14 weeks to reflect his guilty plea, plus the 8 week suspended sentence to run consecutively for a total of 22 weeks in jail.

I can only assume that the training regime for the Chippenham magistrates is woefully inadequate as the above 'working through' of the Sentencing Guidelines is nothing out of the ordinary and should be second nature to any competent magistrate.

To determine that an appropriate sentence in such a case is one of 200 hours of unpaid work and the attendance on an anger management course, which amounts to little more than a medium level community order, flies in the face of reasoning.

The Ministry of Justice and the Senior Presiding Judge say magistrates should not 'blog', as their comments may reduce public confidence in the judicial process. It's not blogging but sentences like the one handed down by the Chippenham magistrates which reduce confidence in the judicial process and if this blog does nothing more than highlight that not all magistrates think like those in Chippenham it will have served a useful purpose.