Is there ANY consistency in sentencing?

Is there ANY consistency in sentencing?

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Trenton Oldfield was recently sentenced to 6 months immediate custody for disrupting the Oxbridge boat race. The sentence sparked a variety of reactions from both members of the public and the legal community, many of which shared a disbelief at the sentence imposed.

Oldfield’s sentence is one of a number of high profile cases which has cast the spotlight onto the criminal law and on to the issue of consistency in sentencing.

Is causing a public nuisance comparable with the starting point for a mid-range ABH? Or has the criminal law spun wildly out of control in demonstrating that domestic abuse does not require an immediate prison sentence, but a few jokes in (very) poor taste on a social media site do.

Below you can see a few choice examples of the inconsistencies in current sentencing practice.

Trenton Oldfield, public nuisance

Oldfield swam in the Thames causing the boat race to be halted and restarted. There was a 25 minute delay whilst Oldfield was fished out of the river and arrested, waving smugly as he was. He was convicted of causing a public nuisance.

Public nuisance is a wide-ranging offence and so prior to Oldfield’s sentencing, there was discussion and disagreement as to what the eventual sentence would be. (For more on public nuisance, see Francis Fitzgibbon QC’s article for The JusticeGap here) Oldfield’s conviction essentially relies on the fact that he disrupted the public’s general right to enjoy the boat race.

HHJ Molyneux remarked on Oldfield’s lack of regret and the fact that the offence was deliberate and disproportionate. She also remarked on the fact that Oldfield risked his own safety and the safety of others who, despite his actions, had acted immediately to ensure his safety, both in the water, and from the angry crowd.

Sentence: 6 months (after a trial)

Discount for plea of guilty: None

Status: Crown Court

Trenton’s case is apparently warranted four times the punishment than the next case…

Matthew Woods, 19, sending a grossly offensive message via a public communications network

Mr Woods was jailed for 12 weeks for posting ‘jokes’ about the missing, presumed dead, 3-year-old April Jones. Whilst drunk, Woods posted comments on Facebook about April Jones and Madelaine McCann. The Guardian reported that Woods’ comments included: “Who in their right mind would abduct a ginger kid?” In another he said: “I woke up this morning in the back of a transit van with two beautiful little girls, I found April in a hopeless place.” He also wrote: “Could have just started the greatest Facebook argument EVER. April fools, who wants Maddie? I love April Jones.” Also posted were comments of a more sexually explicit nature.

He was arrested for his own safety and subsequently charged under the controversial Communications Act 2003 s 127. He pleaded guilty and when sentencing, the Chairman of the Bench stated: “The reason for the sentence is the seriousness of the offence, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive.”

Sentence: 12 weeks (18 weeks after a trial)

EDIT 1/11/12: This sentence was reduced on appeal in the Crown Court (Judge sitting with two magistrates) to 8 weeks. The 1/3 discount for pleading guilty remained, resulting in a notional sentence of 12 weeks after a trial) You may question whether this is the type of behaviour which, though reprehensible, is of the sort which ought to be criminalised.

Discount for plea of guilty: Yes

Status: Magistrates’ Court

But Wood’s offence was apparently only half as serious as…

Aaron Cawley, 21, assault (assumed to be common assault)

During a football match between Leeds and Sheffield Wednesday, Cawley ran onto the field of play and pushed a player in the face, causing him to be knocked to the ground and require on the field treatment.

Cawley had been subject to two Football Banning Orders in the past, which he had breached four times. He had emailed police and Sky Sports expressing his regret.

Sentence: 16 weeks (24 weeks after a trial) and 5-year Football Banning Order

Discount for plea of guilty: Yes

Status: Magistrates’ Court

The following case is three times worse than Cawley’s…

Jordan Blackshaw, 21, incitement to riot

During the Summer 2011 riots, which started in London and spread to many places across England, Blackshaw created a Facebook event, the subject of which was the riots in his local Northwich, the title of the event was ‘Smashdown in Northwick Town’. The riots were in full flow and the comments were aimed towards his close associates, ‘the Mob Hill Massive’. Nine people had confirmed their attendance at the event, which was to happen the following day, however in the event, no offences were committed.

Blackshaw pleaded guilty to encouraging or assisting offences believing that one or more would be committed under Serious Crime act 2007 s 46. The offences which he believed would be committed were burglary, riot and criminal damage.

The court stated that the sentence included a deterrent element.

The Court of Appeal judgment can be found here.

Sentence: 4 years (6 years after a trial)

Discount for plea of guilty: Yes

Status: Court of Appeal, upheld. Lord Chief Justice

At the other end of the scale…

Justin Lee Collins, 38, harassment

Mr Collins was convicted of pursuing a course of conduct which causes another to fear, on at least two occasions, that violence will be used against him. The person was his former partner. He was found to have bullied her, both physically and mentally and to have spat in her face. The relationship lasted 7 months and Mr Collins was said to have verbally abused his partner, calling her a “f****** slag”, a “dirty vile whore”, and a “f****** sex addict”. He interrogated her about her previous sexual history and allegedly tried to throw her into the path of a passing car.

Sentence: Community Order, 140 hours unpaid work, £3,500 costs.

Discount for plea of guilty: No.

Status: Crown Court

Justin Lee Collins’ case some distance away from…

Barry Thew, 39, displaying writing or other visible representation with intention of causing harassment, alarm or distress

Less than 3½ hours after the murders of two female police officers in  the Manchester area, Mr Thew was seen in a white t-shirt with hand-written text on the front and back.

The Guardian reported here that the T-shirt said on its front: “One Less PiG Perfect Justice.” On the back: “KiLL A COP 4 Fun.co.uk HA, haaa?”

HHJ Larkin, sentencing, said “This, on any view, is a shocking case. Your response to the shocking events was to parade around in a T-shirt in the centre of Radcliffe which had on it the most disgusting of slogans. In my judgment, it is utterly depressing that you felt able to stoop so low as to behave in that way. Your mindless behaviour has added to the pain of everyone touched by the deaths of these young officers. You have shown no remorse.”

Sentence: 4 months (6 months after a trial) (and 4 months concurrent for breach of a suspended sentence imposed for a cannabis offence)

Discount for plea of guilty: Yes.

Status: Crown Court

Assuming there is consistency, the following case is ‘worth’ 8 times what Mr Thew received …

Edward Woolard, 18, violent disorder

Mr Woolard involved himself in the protests which were held against the increase in tuition fees and threw a fire extinguisher from the roof of Millbank Tower, a seven story building in London. The fire extinguisher was thrown into a gap in the crowd and Woolard was extremely fortunate to not be before the court for causing serious injury to a member of that crowd.

The Judge said, “It is deeply regrettable, indeed a shocking thing, for a court to have to sentence a young man such as you to a substantial term of custody…but the courts have a duty to provide the community with such protection from violence as they can, and this means sending out a very clear message to anyone minded to behave in this way that an offence of this seriousness will not be tolerated.”

The Judge remarked that those who abused the right to protest peacefully could expect lengthy custodial sentences. Further, the Judge said that if ever a case called for a deterrent sentence, “this was it”.

Sentence: 2 years 8 months (4 years after a trial)

Discount for plea of guilty: Yes

Status: Crown Court

Edward Woolard’s case is much worse than…

Philip Laing, 19, outraging public decency

Laing, a student, urinated on a cenotaph after downing a bottle of whiskey and attending an organised bar crawl where all drinks were £1. He was photographed during the act. The Judge remakred that he was very contrite.

The prosecution called it a disgusting and reprehensible act, and the Judge stated that “The image was truly shocking – a young man of 19 urinating on a memorial to honour so many other young men.”

Sentence: Community Order, 250 hours unpaid work, £185 costs.

Discount for plea of guilty: Yes

Status: Crown Court

Imposing custodial sentences and striving for consistency

The Criminal Justice Act 2003 makes clear that a custodial sentence will only be imposed where the offence is so serious that a fine or community order cannot be justified (s 152(2)). The Act also requires a custodial sentence to be the shortest term that is commensurate with the seriousness of the offence (s 153(2)). Given these provisions it’s difficult to reconcile some of the custodial sentences listed above.

Furthermore, when comparing some of the custodial sentences with the non-custodial sentences, there appears to be significant inconsistency. Is swimming in the Thames during the boat race twice as serious as making “sick” jokes about a missing child? Are both of those offences considerably more serious than putting your partner in fear of violence and subjecting her to physical and mental abuse?

Expect an appeal against sentence in Oldfield’s case. The sentence of 6 months appears to me to be wildly disproportionate and contrary to CJA 2003 s 152(2) and 153(2). I would argue that such an offence is not worthy of a custodial sentence. There is a certainly a policy argument to be made, alongside a simple common sense argument. Whether the Court of Appeal acquiesces to the legal argument remains to be seen.

5 COMMENTS

  1. Hope I am not being contentious but these seem to fall into 2 categories, “political” and “idiots”. Thew’s son died as a result of police negligence, Thew had been arrested dozens of times and not charged. As with Moat he had a breaking point. Oldfield? Had the punishment not been so harsh he would have looked a dolt, now he can claim martyr status. Woolard? Ditto. Blackwood is one case, didn’t two Scots get lengthy custodial sentences for similar? Now to Woods. I am all for free speech (we will see this centre stage in the Ched Evans Twitter trial soon) but Woods is just a sick scumbag. Likewise Cawley, and I am no fan of Collins. Pissing on a war memorial? Purely subjective but jail Laign and throw away the key.

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