Attorney General's Reference Nos 86, 87 & 88 of 2004

LORD JUSTICE TUCKEY: On 7th June 2004 in the Sheffield Crown Court, before Judge Bentley QC, Dylan Brian Sellars, Simon Ronald Broad and Jamie Lee Matthews were each sentenced to two years' imprisonment for an offence of racially aggravated grievous bodily harm to which they had pleaded guilty at an earlier hearing. Sellars had also pleaded guilty to an offence of racially aggravated assault occasioning actual bodily harm for which he was sentenced to 12 months consecutive, so he received a total sentence of three years. The Attorney General seeks leave to refer these sentences to this court on the grounds that they were unduly lenient. We grant leave.

The facts are as follows. The victim of the first offence was Ersin Onaranoglu. The victim of the other offence was Ahmed Gulhan. Both these men are Turkish. On Saturday 11th October 2003 they went out for the evening in Sheffield. Earlier that day there had been an international football match between England and Turkey which England won.

Some time after 12.30 am the following morning the two victims drove in Gulhan's car to Matilda Street and parked just opposite the Matilda Tavern. They were on their way to a nearby nightclub.

At the time they arrived the three offenders were standing outside the Matilda Tavern which they had recently left. As Onaranoglu got out of Gulhan's car, Sellars asked him where he was from. Onaranoglu replied: "I am Turkish", at which Sellars walked towards him and punched him on the right side of the jaw. Another man (not identified or charged) then joined Sellars in punching Onaranoglu. As they attacked him both shouted racial abuse including "You Turkish cunt". They grabbed his shirt and dragged him for a distance of 10 to 20 metres. He then attempted to defend himself. Sellars and his companion continued to kick and punch Onaranoglu and he fell to the ground. When he got up his assailants turned and ran off.

Meanwhile Gulhan had got out of his car and heard racial abuse including "You fucking foreign bastards" and "Fucking Turks". As he went to help his friend he was attacked by Sellars and two other men who have not been apprehended. This attack was started by the other two men with Sellars joining in and all three of them shouting "Turkish bastards" and "Get back to Turkey". Onaranoglu, who was by this time concerned about Gulhan's safety, tried to move towards him. As he did so he was struck hard to the face causing him to fall to the ground once again. All three offenders then surrounded and attacked him. Their actions were witnessed by the landlady of the Matilda Tavern, her son and some friends of his who were watching from an upstairs window above the public house. Matthews was seen to kick Onaranoglu four times to the head and upper body in quick succession. Each kick was audible and the kicks were so hard that Matthews was having to hold both arms up in order to steady himself. Sellars and Broad joined in the attack repeatedly and forcibly stamping on Onaranoglu as he lay defenceless on the ground. Onaranoglu felt what he described as 'unbearable pain' and then lost consciousness. During this attack the landlady of the public house continually screamed and shouted at the offenders to stop. As she and others ran out from the pub, the offenders scattered and ran off. Onaranoglu was left lying in the road covered in blood.

After the police arrived the three offenders were arrested in nearby streets. Sellars was wearing a ripped t-shirt. Broad had bloodstains on the front of his shirt and on his right boot. Matthews was wearing a heavily bloodstained white cardigan and had blood all over his hands and face.

Both victims were taken to hospital. Onaranoglu had suffered a very serious injury as a result of the attack on him: a fractured skull which necessitated the surgical insertion of a titanium plate. This might, in the opinion of the treating surgeon, result in permanent numbness to the left side of his forehead. He also suffered bruising to his kidneys causing him to have blood in his urine, cuts to his forehead and the bridge of his nose and soft tissue injuries to his back and sides. The effect on Onaranoglu has been considerable. He suffered trauma which left him unable to work and as a result he has lost his partnership in a successful restaurant in Sheffield and returned to Turkey.

Gulhan sustained bruising to the outside of his left eye socket, the inside of his lower lip and his upper left abdomen. He also had pain to his elbow and left shoulder. He was not detained in hospital.

Following their arrest the three offenders were interviewed. Sellars claimed that he had been attacked by a man with whom he had then had a set to, but made no comment in response to the majority of questions. Broad said that he had done no more than intervene to prevent two men jumping on Sellars. He had been too drunk to be able to describe these two men. Matthews said that he came out of the Matilda Tavern with his girlfriend and saw a fight taking place. He had done no more than seek to break up this fight and protect a man who was being beaten up. He denied he was drunk.

The indictment contained a count of grievous bodily harm with intent but on the day the case was listed for trial (when the pleas of guilty were entered) the Crown accepted pleas to racially aggravated grievous bodily harm on the basis that the offenders were so drunk that they were unable to form the specific intention to cause really serious grievous bodily harm. Such pleas had not been offered before by any of the three offenders.

Sellars is now 32. He has previous convictions for burglary, drugs and motoring offences but none for violence. A pre-sentence report assessed him as being a medium risk of serious harm to the public. He came from a stable background and was in regular employment.

Broad is now 31. He had a number of previous convictions for dishonesty, but in 1993 had received a community service order for an offence of assault occasioning actual bodily harm. He was assessed as presenting a moderate risk of further offending. He had a long term partner with whom he had two children.

Matthews is now 25. He had no previous convictions, although he had been cautioned for an offence of common assault in 2002. He was assessed as presenting a low risk of further offending. He was married and in good employment. We have today been given a further reference from his employers who are apparently holding his job open.

In sentencing these three men the judge said that this was an appalling incident, not simply because of the extent of the violence involved but because of the dreadful injuries Onaranoglu suffered. It was incidents of this kind which left people feeling unsafe to go out and about in town and city centres at night.

We entirely agree with these remarks, but the question for us is whether the judge fully reflected the seriousness of what happened that evening when he passed the sentences he did, more particularly whether he reflected the racially aggravated element in those sentences. Mr Hehir for the Attorney General says he did not. He confines his submissions to the sentences for racially aggravated grievous bodily harm and takes no issue with Sellars' consecutive sentence for the other offence. He identifies the following aggravating features: it was an unprovoked group attack on a lone and defenceless individual in which shod feet were used. The mitigating features are the pleas of guilty, none of the offenders had any serious record of violence or had served a previous custodial sentence and each of them in one way or another had expressed shame and remorse for what they had done.

In support of his submissions Mr Hehir referred us to Saunders [2000] 1 Cr.App.R 458; Moore (1992) 13 Cr.App.R (S) 130; and Jane [1998] 2 Cr.App.R (S) 363. In Saunders this court emphasised the need to pass sentences to deter racially aggravated offences. For offences of racially aggravated assault occasioning actual bodily harm or grievous bodily harm an increase of up to two years in the sentence which would otherwise have been passed for the assault on its own was appropriate. The extent to which that uplift should be applied was dependent upon all the circumstances of the particular case. Relevant factors would include the nature of the hostile demonstration, its length, its location and the number of those demonstrating and those demonstrated against. The other two cases show the serious view which the court takes of attacks which involve kicking a defenceless victim on the ground.

Mr Hehir accepted that the judge's sentence of two years could not be faulted if it had been passed for the simple section 20 offence. But he says one can see both from his sentencing remarks and from the sentence he passed that the judge did not take any account of the racially aggravated element. This justified an uplift, in Mr Hehir's submission, of 15 to 18 months.

On behalf of the offenders both counsel accepted Mr Hehir's submission that two years was the appropriate sentence for the grievous bodily harm and sought to argue that his suggested uplift was too great having regard to the guilty pleas and the circumstances of this particular incident. The submission came down to saying that if one did not take such a large uplift and took account of double jeopardy it could not be said at the end of the day that the sentences were unduly lenient.

However, we do not accept those submissions. We have to say that acceptance of two years for the section 20 offence on its own was generous to these offenders and we should not be taken as accepting that this was the appropriate sentence if there had been no racially aggravated element. We think a somewhat higher sentence was appropriate, given the serious nature of this attack.

However, this is an Attorney General's Reference and in fairness to the offenders we do not think it would be right to take a higher starting point than Mr Hehir has accepted. Undoubtedly, as everyone concedes, the two year sentence has to be uplifted to take account of the racially aggravated element and we think that the appropriate uplift in this case, having regard to all the circumstances, should be one of 18 months.

The judge did not differentiate between these three offenders so far as the racially aggravated grievous bodily harm offence was concerned and we have concluded that we should not do so also. Counsel did not urge that course and it can be said, as the judge recognised, that the fact that Sellars started this incident was or has been marked by the fact that he received a consecutive sentence of one year which means that he will be in prison for longer than the other two.

Returning to the sentence which should have been passed for the offence to which all three pleaded guilty we think the judge should have passed sentences of three-and-a-half years. To reflect the fact that in this court the offenders have faced double jeopardy, this sentence should be reduced in each case to one of three years.

The net result is therefore that for the sentences imposed on Broad and Matthews we substitute sentences of three years in each case. So far as Sellars is concerned for the racially aggravated grievous bodily harm we substitute a sentence of three years. The one year consecutive sentence stands so he will serve a total of four years.