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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kelly & Anor, R. v [2001] EWCA Crim 170 (06 February 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/170.html Cite as: [2001] 2 Cr App R (S) 73, [2001] Crim LR 411, [2001] 2 Cr App Rep (S) 73, [2001] EWCA Crim 170

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice The Strand London WC2
		6th February 2001

1. MR JUSTICE CRESSWELL: On 3rd February 2000 at the Crown Court at Blackfriars before His Honour Judge Samuels QC, the appellants were convicted and on 6th March sentenced as follows: Miles Donnelly, counts 1 and 2, racially aggravated assault occasioning actual bodily harm, 3 years' detention in a young offender institution on each concurrent. (In addition Donnelly was found to be in breach of an early release licence in respect of a 6 month sentence of detention imposed by the Marylebone Magistrates' Court on 28th May 1999 for an offence of possessing a Class B controlled drug. He was ordered to serve 73 days prior to the sentence of 3 years pursuant to section 40 of the Criminal Justice Act 1991.) Lewis Kelly, count 1, racially aggravated assault occasioning actual bodily harm, 3 years' detention in a young offender institution. (A community service order imposed by Marylebone Magistrates' Court on 9th August 1999, for an offence of theft, was revoked.)
2. The appeals against conviction and sentence are by leave of the Single Judge.
3. On the morning of 4th August 1999 a Mr Charnesh Kapoor (the subject of count 1) was driving his Porsche convertible motor car in Abbey Road, St John's Wood. There were two passengers, his brother-in-law, Tarun Puri, and his nephew, Kanav Puri (the subject of count 2). It was alleged that racist remarks were made by the appellants. The car was subsequently parked in Blenheim Terrace and an incident followed.
4. The prosecution case was that the appellants had been hostile and racist in their behaviour to the complainants from the outset. The appellants had repeatedly used the term "Paki". Mr Kapoor had attempted to diffuse the situation and placate the appellants. Donnelly stabbed him with a Biro pen and Kelly hit him with a bottle or some other heavy object. When Mr Kanav Puri tried to intervene, he was also assaulted by Donnelly. It was accepted that Mr Kapoor head-butted Kelly, although it was contended that he did so in self-defence. The prosecution relied on the evidence of the complainants and eye witnesses, together with medical evidence.
5. The defence case was that the complainants had been the aggressors, calling the appellants "scum" and initiating the incident. Such violence as was used by the appellants had been used in self-defence. An eye witness was called by Mr Kelly who stated that Mr Kelly had tried to stop the fight.

The Accounts of the Complainants

6. Mr Charnesh Kapoor, who was 40, said he became aware of the appellants crossing the road to the rear of his car. Racist remarks were made such as "You Pakis, who gives you the right to drive an S reg car?" and: "What are you staring at, Paki?". Mr Kapoor drove off and turned into Blenheim Crescent, parking opposite an estate agents. Mr Kelly made reference to needing "to sort you Pakis out". Mr Donnelly also made racist and abusive remarks. Mr Kapoor tried to placate them. Mr Kelly remained aggressive and indicated that he wanted to fight Mr Kanav Puri. Mr Donnelly then stabbed Mr Kapoor in the chest with a Biro pen. He then saw Mr Kelly swinging a beer bottle and ducked, but a blow either from the bottle or a heavy object struck him on the head or face. He ended up on his knees with Mr Kelly throwing punches at him.
7. In cross-examination, Mr Kapoor accepted that he had head-butted Mr Kelly but said he had done so in an effort to protect himself.
8. Mr Kanav Puri said that the incident began with Mr Donnelly saying: "What are you looking at?" No one responded. He next saw the appellants on the left-hand side of the road and heard racist remarks such as "You Pakis, you think you can come to our country and drive S reg cars and take over the country". Again no one responded. Mr Kapoor parked in Blenheim Terrace and got out of the car to go to the estate agents. Mr Puri then saw the appellants approaching. Each had a beer bottle. Mr Kelly asked if Mr Puri wanted a fight, just the two of them. Mr Kapoor tried to diffuse the situation. As to what happened thereafter, there was an acute conflict between, on the one hand, the account of Mr Kapoor and Mr Kanav Puri and, on the other, the appellants' account.

Eye Witnesses' Accounts

9. Mr James Martin, who worked in the estate agents, said that he saw Mr Kelly strike Mr Kapoor with a beer bottle hitting him in the eye or cheekbone. Mr Kapoor hit him back. Mrs Sprackman, a secretary at the estate agents, said that the appellants were goading the Asian men. She saw Mr Kelly with a bottle. He was aggressive and seemed to be getting one of the men to fight with him. She did not believe that this was two sided and said that the two younger men appeared to be the aggressors. Mr Stewart Burke, was also at work in the estate agents, said he heard the appellants shouting "Pakis" and "flash cars". Mr Kapoor got out of the car and gave the impression that he did not want to get involved.

The Medical Evidence

10. Dr Crabtree treated a wound to Mr Puri's foreman. Dr Nuttall treated Mr Kapoor, who had a superficial wound to the front of his chest and bruising to the left eye and swelling to the left side of the skull. Dr Mangan treated Mr Kelly. He found grazes to the fourth and fifth fingers of the right hand, swelling and a small cut to the upper lip, with a front tooth pushed back. The injuries to the mouth were consistent with being head-butted.

The Evidence of Police Officers

11. Police Constable Mullally approached Mr Donnelly after the incident. Asked if he knew about a fight, Donnelly replied that his friend had been punched in the face by a man, and that he had become involved in an attempt to help him.
12. Police Constable Kemble subsequently saw Mr Donnelly who said: "Me and my mate were in a fight, he's got a split lip." He refused to give the name of his friend.
13. It was submitted on behalf of Mr Donnelly that these answers should be excluded on the basis that he should have been cautioned before any questions were put. The judge rejected that submission, ruling that a caution should have been given but, having regard to the circumstances, the admission of the responses would not have such an adverse effect on the fairness of the proceedings that they ought to be excluded.
14. In the course of her evidence Police Constable Kemble revealed that she had addressed Mr Donnelly by his Christian name. The defence submitted that, as a result of this, the jury should be discharged. The judge ruled that, because of the way in which the prosecution had dealt with the matter, any negative implications which might have been conveyed to the jury had been glossed over. He added that, in summing-up, no emphasis would be placed on the evidence of PC Kemble at the scene.
15. When interviewed Mr Donnelly made no comment. Mr Kelly's account in interview was broadly, although not entirely, consistent with his evidence.

The Defence Case

16. Mr Donnelly said that, on the night before, he had been drinking heavily. He started the day with a couple of beers and bought a couple more to help him on his way home. In Abbey Road they saw a Porsche motor car. A back seat passenger said: "What are you looking at?" In Blenheim Terrace the same man said: "It's the scum again." Mr Donnelly denied that he had used racist remarks and added that he had many Indian friends. The younger of the two men was aggressive, using abusive language and swearing. The fighting started when Mr Kapoor grabbed Mr Kelly and head-butted him. He tried to pull him off, and prodded Mr Kapoor in the chest with a pen. He pulled out a beer bottle and waved it, shouting at Mr Kapoor to leave it, but Mr Kapoor said: "I'm going to do you, fuck you up." Mr Donnelly said that he was not drunk.
17. In cross-examination, on behalf of Mr Kelly, Mr Donnelly said that it was Mr Kelly who used the words "leave it" and that shortly afterwards Mr Kelly had been head-butted.
18. In cross-examination, by the Crown, Mr Donnelly accepted that he had gone to the end of Blenheim Terrace, a dead end, and had jumped over a wooden fence and some gardens. However he had not been desperate to get away.
19. Mr Kelly's account was as follows. He said that on the morning of the offence, Mr Donnelly was a little tipsy. They noted both the car and its occupants. Mr Puri asked Mr Donnelly what they were looking at. The words "scum" was used. Mr Donnelly answered with a "bit of verbal". Both Mr Puri and Mr Kapoor got out of the car. There were shouting, but he denied that there had been any racist remarks. He did not punch anyone. There had been a tussle in which his T-shirt was torn. Mr Kapoor seemed to be hurt, and was on his knees. He had not hit Mr Kapoor, but retreated. The incident had simply been a fight. He had been hit twice, but Mr Kapoor had tried to head-butt him on at least four occasions.
20. Mr Merritt, an employee of the Post Office, gave evidence. I will refer to his evidence below.

The Jury Note

21. During their deliberations the jury sent a note requesting guidance. The judge directed the jury as follows in response to the note:

"...you have asked a question... 'The jury would like further clarification of the term 'racially aggravated'. Do words need to be used? Are intentions important? If we cannot decide on that does the charge of assault fail?'

...yesterday...I gave a definition of a racially aggravated assault and I will repeat that for your assistance.

It means for the purpose of this case that at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on the victim's membership or presumed membership of a racial group...

In this case it has been said by prosecution witnesses that words were used, and I need not repeat them to you, you have them clearly in mind, but what you will have to consider is not only the words alleged to have been used, the particular words alleged to have been used, but all the surrounding circumstances of the incident.

Ask yourselves the question, as I have invited you to do already: how did it all start? Did it all start as the Crown suggest because two young men saw these three gentlemen of Indian origin driving an expensive motorcar, or did it start because two young men saw persons in an expensive motorcar and they were entirely impervious to their origins? Always remembering, of course, that it is for the Crown to satisfy you of the guilt of the defendants and not for the defendants to satisfy you of their innocence.

So it is for you to decide whether the words which the prosecution lay emphasis on, or all the surrounding circumstances of the incident itself, how it started and how it developed, were a demonstration of hostility towards Mr Kapoor or Mr Puri on the basis of what they presumed to be the case as to the ethnic or racial or national origins of Mr Kapoor or Mr Puri.

I hope that helps. The short answer to the specific questions you have raised is this. Words do not need to be used to establish this offence, but the words are all part and parcel of the way in which the prosecution has suggested this incident developed.

If you are unable to be sure that the defendants did, or at least one of them did, demonstrate hostility towards Mr Kapoor or Mr Puri as the case may be hostility based on that person's membership or presumed membership of a racial group then the prosecution has failed to satisfy you of an essential ingredient of the offence which is laid here and your verdict would be not guilty. If you are sure that the defendant whose case you are considering did demonstrate towards

Mr Kapoor or Mr Puri as the case may be hostility based on that gentleman's membership or presumed membership of a racial group in the way I have described then your verdict is guilty."

Grounds of Appeal

22. As to the grounds of appeal against conviction, it is convenient to distinguish between grounds that relate to the conduct of the trial prior to summing-up, and those that relate to the summing-up.

The Grounds that Relate to the Conduct of the Trial, Prior to Summing-up

23. Mr Donnelly's grounds of appeal against conviction include the following: the judge (1) erred in failing to discharge the jury; (2) omitted to prevent Mr Puri making submissions, and prevented counsel from so doing; (3) elicited evidence of the appellant's poor work record, which was prejudicial (4) permitted evidence to be given of Mr Donnelly's whereabouts on the 4th August, which was also prejudicial (5) was dismissive towards defence counsel, which was likely to illustrate to the jury he had formed a particular view.
24. Mr Kelly's grounds supported Mr Donnelly's grounds as above.
25. As to (1), (the question whether the jury should have been discharged) there was not, in our view, sufficient reason to justify discharging the jury. It was a matter for the judge's discretion, and there are no grounds for interfering with the exercise of that discretion.
26. As to grounds (2) and (3) there is, in our view, no substance in these grounds. As to ground (2) (the criticism of the judge's handling of the case, when Mr Puri was giving evidence) it is a common experience in the criminal courts that it is not always easy to control those who come to give evidence. No doubt Mr Puri gave extensive answers. But we do not accept that defence counsel were in any way inhibited in fully putting and exploring their respective cases.
27. As to ground (4) the line of questioning was admittedly delicate because Mr Donnelly had escaped from custody. Its relevance was limited. According to Mr Giulani, for the prosecution, he was concerned to establish that the defendants had put their heads together. But the important point, as we see it, is that no objection was taken at the time by counsel.
28. As to ground (5), a brief exchange about the use of a word which the judge regarded as slang would have had no bearing on the overall fairness of the trial.

The Grounds that Relate to the Summing-up

29. The grounds in Donnelly's case allege that the judge failed to sum-up the defence case properly, in that he did not remind the jury that the prosecution witnesses had collaborated and summed-up the appellant's evidence in a factually incorrect manner.
30. The grounds in Kelly's case assert that the summing-up was unbalanced and unfair, in that the judge extensively and consistently emphasised weaknesses in the defence and glossed over similar weaknesses in the Crown's case and made serious and material errors in summing-up the evidence.
31. We will consider these points under the following headings: The alleged factual errors in the summing-up, the treatment of the evidence of Mr Merritt and the directions as to racial aggravation and balance.

The alleged factual errors in the summing-up

32. The first alleged factual error in the summing-up at page 28E. The judge said:

"In cross-examination on behalf of Mr Kelly, Mr Donnelly said it was Mr Kelly, not him, who said 'Leave it. Leave it', and shortly after that being said by Mr Kelly, Mr Kelly got head-butted. He then said, in cross-examination by Mr Kelly's counsel, 'He may have got butted after I used the pen.' Well, you will have to consider that."

33. Mr Pidcock, for Donnelly, submits that the judge was in error in this part of the account. Neither defence counsel had any recollection of the statement which the judge attributed to Mr Donnelly, "he may have got butted after I used the pen". We do not have a transcript of the relevant passage in the evidence, but it seems plain in the circumstances that the judge was relying on his own note.
34. The second alleged factual error in the summing-up was at page 33F, where the judge said:

"There is one matter you may or may not find helpful, but that is the entirely independent documentary evidence read to you from the doctor, Dr Mangan, who saw Mr Kelly at the police station on 5th August last year.

The first observation he made when he examined him was to see grazes on the proximal joints of the fourth and fifth fingers of the right hand and the index and fifth fingers of the left hand; in other words, grazes here and there. It will be for you to decide what, if any, significance there is in relation to those grazes, given Mr Kelly's evidence that he did not punch anyone."

35. Mr Pidcock submitted that it was inappropriate for the judge to give expert evidence as to how the injuries occurred, and further, that the recollection of both defence counsel was that Mr Kelly had admitted punching in self-defence. Thus, submitted Mr Pidcock, the comment about Mr Kelly's evidence that he did not punch anyone was inaccurate and unfair.
36. Mr Coghlin also submitted that the comment was inaccurate and unfair and referred to page 19 of the notes of interview.
37. As to the first point taken by Mr Pidcock, it was perfectly proper for the judge to point out the position of the proximal joints of the fourth and fifth fingers. As to the second point, again, we do not have a transcript. It is far from clear whether any correction was called for. The judge, in the passage that we have quoted, was inviting the jury to consider what, if any, significance the grazes had in the context of the case. Further, it is to be noted that the judge had correctly and appropriately directed the jury at the outset in these terms (page 5F):

"...I shall so far as is practicable try to avoid giving any opinion of my own or any comment on the facts. However, if I do give any, which you think seems to lean in one direction or another, please pay no attention to it unless it happens to coincide with your own. If I omit to mention evidence which you think is important, you must take it into account and give it all the prominence it deserves, for in relation to the facts it is your judgment alone which counts."

The Evidence of Mr Merritt

38. Mr Merritt was a witness called by Mr Kelly. He was a post office worker. He had seen the latter part of the incident, and he said in evidence that, from what he had observed, Mr Kelly had tried to stop the fight.
39. Mr Coghlin, for Mr Kelly, submitted that the judge's treatment of the evidence of Mr Merritt in the course of the summing-up was unfair. In particular, Mr Coghlin submitted that the judge did not summarise the evidence of Mr Merritt, which was both independent and of assistance to the defence case.
40. We have looked at the material passages. The judge described Mr Merritt on three occasions as "an important witness". At page 32D, the judge said this:

"But you may think that the fact that [Mr Merritt] and his colleague were in the van to begin with meant that they only got into what was going on between the defendants and the Asians halfway through the incident, and they would have had their attention drawn to something by a lot of noise, and whether or not they got a clear picture of how it all started off will be a matter for you to assess."

41. The evidence of Mr Merritt was fresh in the jury's minds. The judge, as I have already pointed out, emphasised to the jury, at the outset, that it was for them, as the judges of fact, to pay particular regard to the evidence which they thought was important. The comment which the judge made as to the evidence of Mr Merritt simply underlined the fact that Mr Merritt had not seen the incident from the outset. In all the circumstances, we do not consider that the treatment of Mr Merritt's evidence was unfair.

Racial Aggravation

42. Mr Pidcock submitted that the jury were not afforded sufficient guidance on what is a relatively new and difficult area of the criminal law requiring clarification by the courts.
43. Mr Coghlin submitted that the judge should have directed the jury that the use of racist language might not demonstrate hostility. We have already set out the jury's question and the judge's direction in answer.
44. Section 29 of the Crime and Disorder Act 1998, provides, so far as material:

"(1) A person is guilty of an offence under this section if he commits...

(b) an offence under section 47 of [the Offences Against the Person Act 1861], (actual bodily harm)...which is racially aggravated for the purposes of this section."

45. Section 28 of the 1998 provides, so far as material:

"(1) An offence is racially aggravated for the purposes of sections 29 to 32 below if-

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial group; or

(b) the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.

(2)...

'presumed' means presumed by the

offender...

(4) In this section 'racial group' means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins."

46. In the case of each defendant, assuming they were sure the prosecution had established the ingredients of the offence of assault occasioning actual bodily harm, the critical question for the jury was as follows: have the prosecution made us sure that, at the time of committing the offence, or immediately before or after doing so, the defendant whose case we are considering demonstrated, towards the victim, hostility based on the victim's membership (or presumed membership) of a racial group? The judge's answer to the jury's question, drawing as it did on the material parts of section 28, was accurate and sufficient.

Balance

47. I turn, finally, to balance. Mr Coghlin submitted that the learned judge's summing-up was fundamentally unbalanced. He consistently emphasised weaknesses in the defence case but glossed over similar weakness in the Crown's case, as shown by the entirety of the summing-up and, in particular, by his treatment of the following witnesses:- those from the estate agents and, especially, the postman, Mr Merritt.
48. As to balance, all three members of the Court have read the summing-up. It appears to us to be sufficiently balanced and to set out the respective cases of the appellants' fairly.
49. In the result, having carefully considered all the submissions advanced on behalf of Mr Kelly and Mr Donnelly, we have reached the conclusion that these convictions are safe.
50. According, the appeals against conviction are dismissed.
51. THE VICE PRESIDENT: These two appellants appeal, with leave of the Single Judge, against sentences imposed upon them at Blackfriars's Crown Court on 3rd February 2000. They had been convicted, following a seven day trial, before His Honour Judge Samuels QC of, in Kelly's case, one count of racially aggravated assault occasioning actual bodily harm contrary to section 29 of the Crime and Disorder Act 1998 and, in Donnelly's case, on two such counts. They were each sentenced to 3 years' detention in a young offender institution, concurrently in the case of Donnelly; and, in his case, that sentence was ordered, under section 40 of the Criminal Justice Act 1991, to run consecutively to 73 days of an unexpired portion of a previous 6 month sentence, for an offence of drug possession, from which he had been released on licence.
52. The facts of the offences of which they were convicted are set out in the judgment of this Court, delivered earlier today by my Lord, Cresswell J. We need not repeat them.
53. The submission which is made on behalf of both appellants is that a 3 year sentence, on young men both under 21 at the time of the offence and still under 21, was excessive and wrong in principle.
54. On behalf of Kelly, Mr Coghlin submits, in the alternative to that principal submission, that there is disparity in that he should have received a lesser sentence than Donnelly who, as we have said, was convicted on two counts.
55. Mr Kelly Coghlin that no serious injury was caused to either of the victims, that Kelly himself was, at one stage, head-butted and, in consequence, lost a tooth, by one of the victims. Mr Coghlin draws attention to the personal circumstances of Kelly, namely, that he was 19 at the time of the offence and that, although he has previous appearances before the courts, none of them are for violence, none of them involve offences with racial overtones and he has not previously lost his liberty.
56. The pre-sentence report upon him was positive. Mr Coghlin submits that he is now, at least, motivated to stay away from trouble and regrets that he did not extricate himself from the events giving rise to his conviction sooner than he did. Mr Coghlin also submits that it would have been preferable had the judge, in imposing the sentence which he did, spelt out, first, the sentence which he had in mind for the assault offence and, secondly, the extent to which it was aggravated by the racial element.
57. Mr Coghlin also made submissions, in which, as it appears to us, there is no substance, critical of what he describes as "the judge's failure to find facts to a criminal standard" in relation to the sentencing process.
58. On behalf of Donnelly, Mr Pidcock, so far as the disparity submission of Mr Coghlin is concerned, points out that it was Kelly who initiated the bulk of the abuse of these victims in racial terms, and that it was Kelly who used a bottle upon one of the victims, with damaging effect.
59. Mr Pidcock accepts that Donnelly's record is rather worse than that of Kelly, in that not only are there more offences, but he has previously (on more than one occasion) lost his liberty. On at least one previous occasion he has been convicted of an offence involving a racial element in the street.
60. The submission which both counsel make is that a sentence of the order of 12 months could have been expected for the assault offence, and, on that basis, the uplift by the judge by adding a further 2 years for the racial element demonstrates the excessive nature of the sentences which he passed. Mr Pidcock, finally, submitted that the behaviour of Donnelly was more correctly categorised as idiocy rather than a grave offence dependent upon racial matters.
61. There have been a number of decisions of this Court in relation to the approach properly to be adopted with regard to racially aggravated offences. In particular, in R v Saunders [2000] 1 Cr App R 458 and [2000] 2 Cr App R(S) 71, some of the considerations material to sentencing in such cases were identified.
62. Since that decision, and since another unreported decision of a differently constituted division of this Court in R v Morrison Court of Appeal (Criminal Division) transcript of 7th April 2000, there has been the advice to the Court of Appeal in relation to racially aggravated offences published by the Sentencing Advisory Panel in July 2000. That advice, if we may say so, is extremely helpful. The panel suggested that a sentencer should first arrive at the appropriate sentence, without the element of racial aggravation but including any other aggravating or mitigating factors. The sentence should then be enhanced to take account of the racial aggravation, if the offence was one which itself merited custody, by increasing the notional sentence by an appropriate amount to reflect the degree of racial aggravation. That proposal is in accordance with the approach suggested by this Court in Saunders.
63. The Advisory Panel also went on to suggest that, in such a case, the judge should say, publicly, what the appropriate sentence would have been for the offence without the racial aggravation. That differs from what the Court said in Saunders, where it was indicated that it was not necessary for the sentencing judge to expressly state the sentence appropriate for the basic offence, although he or she should identify it in his or her own mind before proceeding to pass the sentence merited by the aggravating racial element. On reflection, this Court takes the view that the suggestion of the panel, in this respect, is well founded. If the judge expressly and publicly identifies the part of his sentence appropriate to the offence, unaggravated by the racial element, that will lead to transparency in sentencing, which will be of benefit to the public and, indeed, to this Court, if subsequently the sentence passed is the subject of challenge.
64. The Advisory Panel also went on to suggest the percentages by which the initial sentence might be increased by reference to aggravating factors by reason of the racial element. The panel did not suggest that the court should express its sentence in percentage terms. We are not persuaded that any precise evaluation of aggravation, in percentage terms, is either possible or necessary in the course of the sentencing process. What the judge must do, by the two stage process which we have identified, is reach the appropriate total sentence, having regard to the circumstances of the particular case.
65. The panel furthermore, in paragraphs 42 and 43 of its advice, identified, helpfully as it seems to us, factors properly to be taken into account as indicating a high level of racial aggravation, in relation to the offender's intention and the impact on the victim or others and, as giving rise to less seriously aggravating factors. The factors seriously aggravating the racial element, in relation to the offender's intention, are there identified as planning by the offender; the offence being part of a pattern of racist offending by the offender; membership of a group promoting racist activities and the deliberate setting up of the victim for the purposes of humiliating him or being offensive towards him. The panel identified a number of factors in relation to the impact on the victim, in particular, if the offence took place at the victim's home, or the victim was particularly vulnerable or providing a service to the public; or if the timing or location of the offence was such as to maximise the harm or distress it caused; or, if the expressions of racial hostility were repeated or prolonged; or if fear and distress throughout a particular community resulted from the offence or if particular distress was caused to the victim or the victim's family. All of those particularly aggravating features, adding as they do to the considerations identified in Saunders, seem to this Court to be proper factors to be taken into account.
66. The Panel went on, as we have said, to identify less seriously aggravating factor, namely if the racist element is limited in scope or duration; or the motivation for the offence is not racial and the element of racial hostility or abuse is minor or incidental.
67. It is to be observed that, in the present case, the offence of which the appellants were charged and convicted was of demonstrating racial hostility, i.e. that form of racially aggravated offence identified in section 28(1)(a) of the 1998 Act. But it is also to be noted that that racial hostility was, as it appears to this Court, central to the conduct of the appellants and could not in any way be characterised as minor or incidental to it.
68. We add, in relation to the case of Morrison, that we agree with the approach of the Court in that case, in paragraph 14 of the judgment, namely that, in dealing with an offence of racially aggravated assault (the sentence for which is 7 years compared with the 5 year sentence for the offence without the racially aggravating element), the court should take into account the fact that Parliament has added 2 years to the maximum available for the offence, but the appropriate amount to add for racial aggravation in other cases will depend upon all the circumstances of the case. The Sentencing Advisory Panel referred in its advice to that case without, as we understand it, being in any way critical of that conclusion.
69. Reverting to the circumstances of the present appeals, although the judge is not to be criticised, in the light of the authorities or lack of them at the time when he passed sentence, for not publicly identifying a two stage process in reaching the total sentence which he passed, it would have been preferable, for the reasons which we have given, had he done so.
70. The question is whether a total sentence of 3 years properly reflects the criminality of these offences, the roles played in them by the two appellants and the degree of aggravation inherent in the racial element.
71. In our judgment, the judge was correct to impose the same sentence on both appellants. So far as Donnelly was concerned, he had, in the pertinent respects which we have identified, the worse of the records of the two appellants. He was the younger of the two but he had been convicted of two offences rather than one.
72. But, so far as Kelly was concerned, the judge was right to say that he knew that Donnelly was affected by drink, and that it was he, Kelly, who had initiated the bulk of the racist comments. He was also correct, in our judgment, in identifying Kelly as playing the more dominant role in the attack and in causing the more extensive and potentially more dangerous injuries wielding a bottle.
73. That said, the two were convicted by the jury of acting jointly. All of these matters, as it seems to us, underline the propriety of the judge imposing the same sentence upon both appellants.
74. The next question, as it seems to us, is whether, in the total sentence which he passed, the judge must have started at too high a point in assessing the appropriate sentence for the offences of violence, not aggravated by the racial element.
75. We do not accept the submission made to us that nine or 12 months would have been appropriate. In our judgment, following a trial, bearing in mind the use of both a bottle and a Biro pen as weapons, and bearing in mind that the incident was by no means momentary but was persisted in for some little time, we would have expected a sentence of 18 months for the offence of violence.
76. That said, having regard to the extent of the racial aggravation as we assess it to be which, as it seems to us, is by no means at the top of the scale of racial aggravation, we would have thought that a further 9 months for the racial element would have been appropriate; that is to say, the total sentence on each of these appellants ought properly to have been one of 27 months' detention in a young offender institution. In consequence, we allow these appeals and quash the sentences of 3 years which were imposed, and substitute sentences of 27 months.
77. We do not, in taking that course, in any way detract from the message as to the gravity of racial offences which the Court sought to enunciate in Saunders, the tenor of which, though not its terms, we now repeat.