To raise awareness in honour of Pride Month, Lucia Harrington has prepared an article which aims to set out how Hate Crimes are sentenced in our criminal courts. We hope it reassures victims of hate crimes, many of whom are from the LGBTQIA+ community, that the courts acknowledge when a person is a victim of such a crime and that the sentence a defendant receives is adjusted in accordance with this.
The Law – Section 66 of the Sentencing Act 2020
This legislation means that when an offence involves hostility related to race, religion, disability, sexual orientation, or transgender identity (presumed or actual) the Court must treat it as an aggravating factor.
There are two ways in which an offence can involve hostility. One way is that the offence is motivated by hostility towards the above, the other is that the offender demonstrates hostility based on the above.
‘Demonstrating hostility’ can arise either immediately before, during, or immediately after the offence is committed so long as it is contemporaneous to the conduct element of the offence.
‘Motivated by hostility’ is where there is evidence that the motive of the crime is that hostility. This can be evidenced by what may have been said or done previously, such as a membership with a racist group.
When sentencing a case where the Prosecution successfully applies for a section 66 ‘sentence uplift’, the Court must state in open Court that the offence is aggravated in this way.
Further to this, the judge should say what the appropriate sentence would have been without the aggravation and what the increase is because of the aggravation.
Stating the sentence in open Court in this way enables transparency. The public can see how the sentence for an offence that demonstrates/is motivated by hostility to the above characteristics is more harsh than if it were not aggravated in such a way.
To help illustrate the point, here is a real working example of a case prosecuted by one of our barristers at Northampton Crown Court in May this year.
The Facts – Regina -v- Kasambula
The offences go back to 16th August 2020. The complainant was out with a group of friends in the early hours of the morning having been on a night out. They were around The Drapery in Northampton city centre.
The defendant was part of a group of young males who followed the complainant and his friends whilst shouting homophobic abuse at the complainant. Primarily this consisted of calling him a ‘faggot’ and ‘gay boy’.
The complainant was with a number of female friends who challenged the other males. The defendant responded aggressively to this and told the females ‘I can say what I want’. The complainant felt threatened and called the police. The defendant saw this and said to the complainant ‘faggot, why are you calling the police?’. The complainant could be seen on CCTV backing off from the defendant as the defendant walked towards him and tried to grab his phone.
The defendant then punched the complainant multiple times to the face and side of the head. The defendant also managed to snatch the complainant’s phone away. The complainant defended himself by punching back but the defendant had the upper hand and continued to swing at him. The defendant was pulled off of the complainant by people from each group. At some stage the defendant also pushed a young woman who was part of the complainant’s group but this did not cause any injury to her.
The injuries suffered by the complainant were a cut to his left ear which had to be glued. It took a few months to heal and has left a lumpy scar. His little finger was broken and took several weeks to heal.
The complainant also made a Victim Personal Statement (“VPS”). A VPS allows a victim to say how a crime has affected or continues to affect them. It is read out or summarised at sentencing hearings. In his VPS, the complainant spoke about how he was left on edge when going out in the city centre, that he no longer feels safe going out in public when holding his partner’s hand, and that the scar is a reminder of the hateful attack.
What happened at the sentencing hearing?
The defendant was sentenced on 20th May 2022 for an offence of assault occasioning actual bodily harm against the complainant and assault by beating against the complainant’s female companion. He had been found guilty after a trial at the Magistrates’ Court. The defendant was committed to Northampton Crown Court for sentence as the magistrates felt that their sentencing power was not enough for these offences.
The Crown categorised the offence as a ‘B2’ offence on the Sentencing Guidelines for assault occasioning actual bodily harm. Therefore, the starting point for the offence was thirty-six weeks’ custody, with a possible range of high level community order up to one year and six months’ custody.
The sentencing Judge determined that the starting point for the offence, before the homophobic nature of the attack was taken into account, was fifteen months’ imprisonment. He then aggravated the offence by three months when taking the homophobia into account.
The final sentence was eighteen months’ imprisonment, suspended for two years. The defendant was also ordered to complete 150 hours of unpaid work and pay £150.00 in compensation to the complainant and prosecution costs of £300.00.
The law has not always assisted or provided for the LGBTQIA+ community. At one time the law even criminalised LGBTQIA+ people and their relationships. It is essential progress that there is legislation such as section 66 of the Sentencing Act 2020, which publicly acknowledges the continuing victimisation of the community and enhances the punishment for perpetrators of hate crimes.
