R v O’Leary (Michael Patrick)

The sentencing judge is entitled to take into account racially motivated threats, as a factor which can increase the seriousness of a conviction for unlawful wounding, even if the offender has not been convicted of racially aggravated unlawful wounding

On the 16th January 2015, the appellant received a custodial sentence of 8 years, after he had pleaded guilty to assault with intent to rob and unlawful wounding. The appellant had used knives to intimidate two victims who were in charge of convenience stores. In the first attack he had entered the store holding a knife and demanded that the till be opened. A struggle had ensued and the complainant had been left with injuries to his head and hand.

The appellant had then returned home, collected two more knives, and then proceeded to tell another convenience store worker, that he wanted to kill a Muslim. A physical altercation took place and the appellant repeatedly punched the second complainant in the head. The victim also received a deep wound to his right hand. Both the victims suffered severe psychological harm, in addition to the physical injuries.

During the sentencing the trial judge, among other aggravating features, also focused on the racial aspect of the threat and the significant psychological harm that has been caused to the victim of the unlawful wounding as a result.

Among other arguments the appellant submitted that the judge was wrong in principle to treat racial motivation as a factor increasing the seriousness of the unlawful wounding because the appellant had not been convicted of an offence of racially aggravated unlawful wounding, contrary to section 29(1)(a) of the Crime and Disorder Act 1998.

Held: The appeal was dismissed. The trial judge was entitled to treat the racial threat as increasing the seriousness of the offence. There was evidence that had been heard and tested during the trial to indicate that the offence was racially motivated. The Court of Appeal applied the case of R. v Khan (Imran Mohammed) [2009] EWCA Crim 389, which held that a trial judge had been entitled to treat a verbal threat to kill someone as an aggravating factor for a conviction of perverting the course of justice; in the Khan case it was not charged as a separate offence. Where a sentencing judge was satisfied to the criminal standard, based on evidence in the trial, that racial aggravation was present then the judge could sentence on that basis, provided it was not inconsistent with the verdict of the jury.

The Court stated that this judgement was not intended to excuse the prosecution from their duty to consider the indictment with care and include racially aggravated offences where appropriate.