R v Kristos Vanyai-White

On 9 December 2024, in the Crown Court at Bristol, after a jury trial, the appellant was convicted of an offence of affray (count 1) and threatening another with a bladed article (count 2). On 31 January 2025, before the same judge and court, the appellant was sentenced to two years' imprisonment on count 1 with a consecutive three year term on count 2.

With the leave of the single judge, the appellant appeals against his sentence, on the basis that it was manifestly excessive as no adjustment was made to the total term imposed for two offences arising out of the same incident.

The offences in issue were committed on 27 May 2024, both involving the same complainant, who was the appellant's ex-girlfriend.

On the evening of 27 May 2024, the complainant had gone to a pub where the appellant had tried to contact her by text. After she had ignored his texts, the appellant went to the pub and spoke to the complainant who was there with a female friend; they both left the pub and were picked up by the complainant's then partner who was driving a Mercedes; the complainant sat in the front passenger seat, her friend in the back. At around the same time the appellant was picked up by his brother and co-defendant, Conan Vanyai-White, who was driving a Skoda.

The Skoda overtook the Mercedes and stopped in front of it, blocking it from moving on, and the appellant got out and began shouting at the other car. When the Mercedes drove towards the appellant, and in an effort to get away, the appellant grabbed hold of the passenger side window and remained hanging on to the window as the car drove down the road. The co-defendant's Skoda caught up with the Mercedes, overtaking and again stopping in front of it preventing it from driving further forward. At this point the appellant produced a knife and began shouting at the complainant to get out of the car. Meanwhile the co-defendant took a spirit level out from the boot of the Skoda and used to smash the driver's side window of the Mercedes. The complainant got out of the Mercedes, which then drove away. A third car, a Vauxhall, driven by another friend of the complainant, stopped nearby and the appellant and the complainant got in, the appellant disposing of the knife at the scene.

The Vauxhall drove back to the pub where the appellant and the complainant remained until closing time before going to another local pub and then moving on to the appellant's address with friends.

The appellant was located by the police two days later. When officers arrived, he threatened to cut his throat with a knife and refused to leave. After over an hour of negotiations, the appellant exited the address and was arrested. He was interviewed the following day and answered "no comment" to questions asked.

The appellant was aged 34 when convicted and sentenced. He had 27 previous convictions for 46 offences, spanning from 10 February 2005 to 29 July 2021, and including two public order offences and two offences of having a blade in public (in 2006 and 2007). At the time of the offences in issue in these proceedings the appellant was on licence for an offence of robbery for which he received a sentence of 102 months' imprisonment in June 2018.

On count 1 (affray), the judge treated this as a culpability A case, with harm falling into category 1 (the sentencing remarks referred to "category 2 harm", but it is apparent from the reference to a two year starting point that the judge intended to say "1"); under the guidelines, that gave a starting point of two years and a range of 18 months to two years nine months. The judge considered count 2 (threatening with a bladed article) as a culpability A case because of the use of knife and category 1 in terms of harm; that gave a starting point of two years, with a range of 18 months to three years.

Treating the appellant's antecedents and the fact that he was on licence at the time of the offences as aggravating features, the judge found the seriousness of the offending was further exacerbated by the fact this took place in a busy public area, when the appellant was under the influence of alcohol. Having regard to the pre-sentence report and to what had been said on the appellant's behalf, the judge allowed there were some mitigating features, in terms of the appellant's mental health issues and the progress he had made in prison.

Having expressly reminded herself that she must ensure “there is no double counting” between the two offences, the judge went on to pass consecutive sentences of two years for count 1, and three years on count 2 explaining:

As the appellant had been on licence at the time of these offences, he had been recalled and was already in custody at the date of the sentencing hearing. Pursuant to section 225 of the Sentence Code, the judge made clear the sentences passed would start immediately thus running concurrently with the recall period.

Given that the offences arose out of the same incident and were committed against the same person, it is the appellant's case that concurrent, rather than consecutive, sentences ought to have been imposed. It is observed in that in opening the case to the jury, prosecuting counsel had described the affray as covering the full incident; regardless when the blade was produced by the appellant, the offence of threatening with a bladed article started and ended during the same incident which formed the affray.

The appellant further makes the point that the imposition of consecutive sentences gave rise to a term in each instance that exceeded the statutory maximum available for each offence: the statutory maximum for count 1 was three years; and that for count 2 was four years. The overall term of five years thus exceeded the statutory maximum penalty in each case, contrary to the guidance in the overarching guideline, which provides:

An additional point made by the appellant relates to the treatment of his consumption of alcohol as an aggravating feature; there being no evidence that this was a contributing factor in the commission of these offences. He also emphasises the mitigating factors that were before the judge.

This was a violent and dangerous incident which warranted a significant custodial sentence to reflect the totality of the appellant's offending. That said, the two offences arose out of the same incident, targeting the same person, and – whether the threats with the bladed article are characterised as being part of the affray, or the affray is seen as relevant context to the threat offence – assessing seriousness for one would inevitably require consideration of the other, linked, element of that offending.

In the circumstances we are unable to see the justification in this instance for the imposition of consecutive sentences. Having regard to the totality guideline, we note that concurrent sentences will ordinarily be appropriate where offences arise out of the same incident or facts and where there is a series of offences of the same or similar kind, especially when committed against the same person. Those descriptions would plainly apply to this case. As we have observed, determining the appellant's culpability and assessing the harm caused in this case inevitably meant that both offences were to be viewed together as part of one incident. Imposing consecutive sentences led the judge to fall into the double counting error she had expressly said she was seeking to avoid. It also gave rise to a global term that exceeded the maximum statutory penalty for each of these offences.

While we recognise that the judge – who had presided over the trial and was well placed to have a sense of the seriousness of this matter – was concerned to ensure her sentence properly addressed both offences, in this instance we consider she erred by imposing consecutive terms. Moreover, as the total term imposed was greater than the maximum for each of the two offences arising out of this incident, we consider that the sentence was wrong in principle and cannot stand.

Undertaking the sentencing exercise afresh, we would treat the affray as the lead offence; which would give a starting point of two years; taken together with the aggravating feature of count 2 – threatening with a bladed article – together with the aggravation of the appellant's previous convictions, we consider this would take the sentence to the top of the category range, warranting a term of two years nine months. We are prepared to accept there is no additional aggravation by what appears to have been the appellant's limited consumption of alcohol on the evening in question, we also accept that there were mitigating features relating to the appellant, but we consider that the seriousness of this offending taken overall, and taken together with the appellant's antecedents, justifies a sentence of two years nine months. For count 2 we would pass a concurrent sentence of two years, representing the starting point for that offence.

For the reasons explained, we therefore allow this appeal and duly quash the consecutive sentences of two years on count 1, and three years on count 2, substituting a sentence of two years and nine months on count 1 together with a concurrent term of two years on count 2.