Gregory, R. v

MR JUSTICE STANLEY BURNTON: On 8th December 2005 at Manchester Crown Court, Minshull Street, the appellant pleaded guilty on rearraignment to three counts of racially aggravated threatening behaviour. He was sentenced by His Honour Judge Lakin to nine months' imprisonment on each count concurrent and in respect of his breach of a conditional discharge he was also sentenced in that case to two months' imprisonment concurrent. The total sentence was therefore one of nine months' imprisonment. That was ordered to be served consecutively to a sentence of seven months' imprisonment which had been imposed on 22nd September 2005 for offences committed against the same complainant. Mr Gregory, who is aged 50, appeals against sentence by leave of the single judge.

The object of the racially aggravated threatening behaviour in question was a family of neighbours of the appellant. Mr Taj lived in Pitt Street, Oldham, with his wife and two children and had lived there for some 24 years. The appellant was a neighbour and the two houses overlooked each other.

There were no problems between them for some 20 years but in March 2005 the appellant used an axe to cause damage and assaulted Mr Taj. On 30th August 2005 at the Crown Court at Manchester, Minshull Street, for two offences of racially aggravated criminal damage, one of possessing an offensive weapon and one of common assault, the appellant was sentenced to 12 months' imprisonment. On 22nd September 2005 that sentence was varied to seven months' imprisonment.

Whilst the appellant was on bail for those offences he committed the index offences. On three occasions in May 2005 the appellant shouted racist abuse at Mr Taj as he left his home. The Crown's case was that whilst the offences were not of the utmost gravity, they had to be seen in the context of the appellant's previous convictions in general and by reference to the offending against Mr Taj in March 2005.

On 8th May 2005, as Mr Taj left his home, the appellant was in his garden. The appellant shouted things such as "Paki bastard, fucking stupid Paki" and stuck up two fingers to Mr Taj. Mr Taj did not respond to the abuse and he carried on his way. He heard the appellant continuing to swear and shout. That episode was the subject of count 1 on the indictment.

On 24th May 2005, as Mr Taj left his home, the appellant shouted several times "You fucking Paki bastard". On 29th May 2005 Mr Taj was leaving home whilst talking to his wife. Again the appellant shouted "Paki bastard" and put up two fingers.

The appellant was arrested on 3rd and 6th June 2005. When interviewed he denied the offences. In his statement Mr Taj explained that in the light of these offences, and the more serious offences in March, he viewed the offences as a form of harassment against him and his family, which caused fear for their safety. In particular he said that his daughter feared leaving the house.

In sentencing the appellant, the judge described him, accurately in view of the incidents which formed the subject of the indictment on which he had previously been convicted, as a racist. He had on a number of occasions hurled abuse at Mr Taj. The offences were aggravated because they occurred whilst he was on bail for other racially aggravated offence and whilst he was subject to a conditional discharge for a racially aggravated offence. Only a custodial sentence could be justified.

In considering what the proper sentence for these offences was, we of course accept that they were serious offences, being racially aggravated, and they clearly passed the custody threshold. They were, however, offences which did not involve any use of violence, unlike the previous offence to which the judge referred, and they had been committed before the sentence in the previous offence and could well have been dealt with at the same time. Had they been dealt with at the same time we consider that they would have resulted in an addition of two or three months to the sentence which had been passed on the previous occasion.

Approaching the matter in that way, it seems to us that the sentence passed in this case, notwithstanding the racial element, was manifestly excessive. The appropriate sentence in the circumstances of this case was one of three months' imprisonment consecutive to the existing sentence. In the circumstances this appeal is successful to the extent indicated and the sentence passed by the judge will be quashed and a sentence of three months' imprisonment will be substituted.