Hate crime

Published date01 March 2020
Date01 March 2020
Subject MatterIn court
In court
In court
Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia,
reviews recent appeal judgments and other judicial developments that inform sen-
tencing and early release.
Hate crime
Newton hearing necessary to resolve homophobic assault motive
When drinking at a pub, G. took issue with two men sitting at a nearby table,
accusing one of them of staring at him before becoming abusive, calling them ‘gay’,
and using what they regarded as homophobic language, such as ‘you poof’,
despite their efforts to calm him down. Having resisted staff intervention, G. threw a
glass at one of the men, striking him to the head. On being prosecuted for actual
bodily harm (ABH) assault, he indicated his preparedness to plead guilty but only on
the basis that he had not used homophobic language, a statutory aggravating factor
under Criminal Justice Act (CJA) 2003 s146(2) (hostility based on the sexual
orientation or presumed sexual orientation of the victim) that would require an uplift
in sentence. No written basis of plea was submitted; nor did the prosecution press
for one, though making clear that it maintained the case as presented on the full
facts set out in the witness statements, including the homophobic abuse.
On summary conviction the District Judge indicated that he considered the cus-
tody threshold to be met, whether or not the offence was aggravated by homo-
phobic hostility. He considered the uplift would be ‘marginal’ as the words
allegedly spoken were at the ‘lower end of the scale of homophobic abuse’. He thus
determined to deal with G’s case on the basis of his plea since, in his view, it would
not be in the interests of justice to require the victim to attend court and face the
ordeal of giving evidence because the sentence would not be significantly
increased if the aggravating factor was found to be established. Following the
preparation of a pre-sentence report (PSR), a lay Bench determined that G’s use of
the glass as a weapon was such an aggravating factor that homophobic comments,
if found to be true, would not materially increase the level of sentence. Accordingly,
they were satisfied that a Newton hearing* to determine the issue was not neces-
sary and proceeded to sentence on the basis of G’s version of events. In the light of
his previous good character, his low risk of reoffending (as assessed by the PSR), his
personal mitigation as a carer for his mother, his guilty plea, and the recommen-
dation of the PSR author, G. incurred a 12-month community order with a
Probation Journal
2020, Vol. 67(1) 77–88
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0264550520905144
The Journal of Community and Criminal Justice

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