John Richards Successfully Appeals Immediate Custodial Sentence for Assault
This case study details how Criminal Barrister John Richards saved a father-of-two from an immediate jail sentence for assault in the Court of Appeal.
Client Story
On the 4th of August 2021, the defendant started his professional exams. He was driving home from the exam at around 3pm when a tradesman waved him down.
He brought his vehicle to a stop and put his head out the window to ascertain what the tradesman was doing. At this stage, he believed he heard a racial slur used towards him, so he parked and walked towards the tradesman to confront him about his behaviour.
As he approached, the tradesman armed himself with a metal pole and struck him on the head twice. Reacting instantly in self-defence he headbutted the tradesman back, pushed the metal bar out of the way, and restrained him in a headlock.
The defendant then punched the tradesman in the back of the head. A witness noticed that both men were bleeding as a result of the injuries they gave each other. They both required hospital treatment.
On the 1st of July 2022 two Police Community Support Officers (PCSOs) stopped John Richards’ client due to the manner of his driving.
The father-of-two started shouting, swearing, and wanting to leave. Then, when a PCSO stood in front of his door, he shut it, struck the officer with the door, and pointed his finger at him.
Background
John Richards’ client worked for his company for 15 years. Once he started to display outward signs of his Sikh religion, he suffered racial abuse at the hands of his employer. He informed his union of the discrimination he was suffering from and was subsequently treated as a whistleblower by the company.
He was told not to wear religious items, his turban, and to shave his beard. Then, making matters worse, he was assaulted by one of the Managers. He filed a report to his union and the Police and was put on stress leave.
After trying to get his job back, he initiated action with the employment tribunal. Then, unable to cover the legal costs, he was forced to accept a settlement.
The racism and assault he suffered from had a significant impact on his mental health. He attempted suicide. Then he sought help from his GP, was placed on a high dosage of sertraline and, unable to afford to pay privately, was put on a waiting list for counselling.
The father-of-two had no previous convictions before August 2021, and, he has not been in any trouble since he was stopped by the PCSOs in 2022, instead concentrating on getting help for his mental health.
For the assault on the tradesman who attacked him with a metal pole, he received an immediate custodial sentence of 12 months. On top of this, the defendant was given a six-week concurrent sentence for the Section 4 public order offence with the PCSOs.
How Kenworthy’s Chambers Helped
Criminal Barrister John Richards was tasked with appealing the immediate custodial sentence. The guilty plea was entered on the basis that the incident with the tradesman was excessive self-defence, and further put forward mitigation including the prospect of rehabilitation, and the harmful impact immediate custody would have.
John Richards worked hard with the client to tell his story, drafting a seven-point plea on the basis of excessive self-defence with no weapon being used. The plea detailed numerous personal mitigating factors that the Judge initially failed to consider adequately.
Other than the public order offence with the PCSOs a year later, the defendant had no offences. There was no pattern of offending behaviour. He had no warnings, cautions, or convictions recorded against him. He didn’t drink or use drugs, there was no indication of risky behaviour, and he had been in constant employment since leaving school. John Richards highlighted how there was no history of poor compliance with court orders and suggested that he presented no risk to the public.
The Probation Service agreed, noting that his risk of serious offending within two years was very low at 0.33%. Furthermore, the Probation Service advised that an immediate custodial sentence would not address the issues of his offending and instead recommended that the matter could be dealt with in the community through their intervention and support.
Having suffered racial abuse the defendant was suffering from significant mental health problems, which was a strong personal mitigating circumstance and contributing factor to why he reacted badly to perceived racism. His poor mental health was evidenced by his prescription, a high dose of sertraline.
He evidenced working on his mental health by continuing to take his prescription and attending counseling. He was put on a waiting list for counseling and now has 20 sessions booked in with the local NHS, after having attended his first psychological appointment.
Another factor the Judge failed to consider in the initial sentencing was how immediate custody would result in a significant harmful impact on others. John Richards’ client had a partner who he no longer lives with, a four-year-old, and a young child who had recently undergone surgery. All three were innocent parties who would be devastated if he were to be sent to prison.
John Richards argued that his client’s case fell into the exceptions outlined in the case of Ali which set a precedent in case law. One of the key exceptional circumstances in the case of Ali was a delay. Ali was not charged till 16 months after the offence and not sentenced till after two and a half years! During this time Ali stayed out of trouble and obtained a positive reference from their Probation Officer.
In this case, the defendant was finally sentenced on the 29th of June 2023, nearly two years after the assault. So, John Richards challenged the immediate custodial sentence, suggesting his client should be eligible for a Home Detention Curfew like Ali was awarded so that his two children, whom he co-parents, would not be adversely affected.
The Results
John Richards was successful in getting the appeal allowed. The decision to impose immediate custody was said to be manifestly excessive. The sentence was suspended for 18 months, and the father of two was released under Home Detention Curfew, serving nine weeks, with 25 days of rehabilitation activity requirement deemed appropriate.
The Judge’s initial sentence ignored the pre-sentence report which highlighted the nature and causes of the behaviour (perceived racism and poor mental health) and the risk that he posed and to whom (no risk to the general public). The pre-sentence report also provided an independent recommendation of the sentencing options available to the court which included a suspended sentence and Home Detention Curfew. Both options were overlooked until John Richards took over the appeal.
The Judge failed to initially consider the alternatives to immediate custody, stating “It is my error, I intended to sentence him to 26 weeks, with 6 weeks consecutive. Making a total of 32 weeks.”
Additionally, the Judge refused the Restraining Order that the crown had applied for against John Richards’ client based on proportionality. The Judge also refused the tradesman’s application for compensation noting how “he assaulted you and you him. It was six of one, and half a dozen of the other.”
We are pleased to report that this client has been able to obtain supported accommodation through the mental health team.
John Richards has two decades of experience practicing Criminal Law. His practice now involves defending and prosecuting in courts across the country, giving him an important perspective in knowing how to approach a case from both a defence and prosecution perspective.
To check the availability of Criminal Barrister John Richards for your Crime case call our Criminal Clerk Paul Mander on 0161 832 4036,
Email: [email protected], or fill out our contact form.
*Image credit: photo by kit1578 on FreeImages
