Author: ObiterJ |
11 Apr 2012 | 14:51
Liam Stacey - a 21-year-old student - was recently sentenced by a District Judge (Magistrates' Court) to 56 days imprisonment for his tweets in relation to Bolton Wanderers footballer Fabrice Muamba (pictured). The Guardian reported that Stacey entered a guilty plea to a charge of racially aggravated disorderly behaviour with intent to cause harassment, alarm or distress contrary to Crime and Disorder Act 1998 s.31 (as read with Public Order Act 1986 s.4A)
There is no doubt that his tweets were highly, some might say extremely, offensive and there were around 26 of them. The District Judge (Magistrates' Courts) who sentenced Stacey would have been able to see them all.
Sentencing - general principles
In particular, the sentencer must consider: the sentencing objectives (Criminal Justice Act 2003 s.142); allowance for guilty plea (CJA 2003 s.144); general restrictions on custodial sentences (CJA 2003 s.152); pre-sentence reports (CJA 2003 s.156); and the duty to explain the sentence (CJA 2003 s. 174).
Furthermore, sentencing guidance must be followed (Coroners and Justice Act 2009 s.125) unless the court is satisfied that it would be contrary to the interests of justice to do so and, if so, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.
Sentencing in the Magistrates' Court for Crime and Disorder Act 1998 s31 based on Public Order Act 1986 s.4A
Sentencing guidance for this offence can be found in the Magistrates' Courts Sentencing Guidelines at page 87. The page refers to the s4A offence and also the Crime and Disorder Act 1998 s31.
The guideline approach requires that the sentencer first decides what the sentence would be but for the racial aggravation and then to increase the sentence to reflect this element. The increase may be to a more onerous penalty of the same type (e.g. to a 'high level' community penalty instead of, say, a 'medium level') or the court may consider that the threshold for a more serious type of sentence is passed (e.g. that the offence is now so serious that that neither a fine alone nor a community sentence can be justified for the offence (see CJA 2003 s.152).
The sentencer must identify the starting point for the sentence and then consider any aggravating and mitigating factors relating to the offence. This leads to a preliminary view of the sentence. The sentence is then increased to reflect the racial aggravation. Next, any mitigation relating to the offender (e.g. previous good record, remorse etc) is taken into account and much of this will usually be available from a pre-sentence report (PSR). (PSRs are generally highly desirable in relation to imprisonable offences). Then a reduction for guilty plea has to be considered (CJA 2003 s.144).
The court must give reasons for its sentence and must indicate what the sentence would have been in the absence of the racial aggravation.
Was 56 days imprisonment justified for Mr Stacey? You be the judge! I think it is difficult to square with the guidelines but, given that the District Judge referred to public outrage, he may well have had deterrence in mind as an objective in sentencing and there can be no doubt that the tweets were particularly objectionable. The judge referred to them as "vile and abhorrent comment about a young footballer who was fighting for his life" and also added that Stacey needed to learn how to handle alcohol better.
I think there is force in the view that Stacey might have benefited more from undertaking a high level community penalty (e.g. a stiff number of hours of unpaid work) and this might have also benefited society more than his imprisonment and, in this event, Stacey could have been ordered to pay an appropriate contribution to the costs of the case. It is understood that Stacey now faces a disciplinary hearing at Swansea University where he was studying biology. For him, this offence is likely to have lifetime repercussions.
On 30 March, an appeal was dismissed (see the BBC's report here). The Crown Court's sentencing remarks are here.
The opening paragraph refers to the charge being Public Order Act 1986 s.31. That section is repealed - see here. I think that the opening paragraph should read Crime and Disorder Act 1998 s.31 - see the post above.
Para. 14 of the judgment is also interesting in that the defence appear to have accepted that Stacey deserved significant punishment for the offence which he committed. Furthermore, the defence did not submit that a sentence of imprisonment was wrong in principle.
However, it was argued that there were mitigating factors in the case to enable the court to impose an alternative to an immediate sentence of imprisonment. Argument was put for a stringent community order or a suspended sentence of imprisonment coupled with appropriate punitive requirements. The defence also accepted that if a sentence of immediate imprisonment is the appropriate sentence a term of 56 days was not too long.
Para. 16 states - "There are no applicable sentencing guidelines. We have been referred to no previous decided cases either in the Court of Appeal or at the Crown Court to assist in determining an appropriate sentence for this type of offence. "
However, there are guidelines for the offence under CDA 1998 s31. (based on POA 86 s.4A) - see Page 87 of the Magistrates Court Sentencing Guidelines - link in the post above.
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