Wrong outrage, wrong target
There’s been an enormous tabloid fuss about Recorder Shaun Smith’s comments on namby-pamby sentencing guidelines, which he says prevented him from sending a burglar to jail.
[Dominic] Wong had admitted battering his way into [seven months pregnant] Safa Moustafa’s home and stealing cash while she cowered upstairs with her two-year-old daughter… [She said] ‘I’m now very nervous and anxious in my own home. I’m forever checking doors and windows and keep looking outside to see who’s around. I can’t even go into the garden unless my husband is here. I can’t be alone in the house and have friends to sleep over.’
Said Judge Smith:
This is sentencing by numbers. I want to send you to prison.The public want to see you go to prison. But I can’t send you to prison because of the guidelines I have been given.’
Indeed, this is an outrage. But the outrage is that the judge doesn’t appear to know the guidelines that he’s working from.
They say that a “standard domestic burglary with a ‘high relevance’ factor, committed by… a first-time burglar” should carry a starting point of 18 months’ custody. Ones with ‘low’ and ‘medium’ relevance carry a starting point of a community sentence, if and only if committed by a first-time burglar (repeat burglars will always go to jail).
So how is the ‘high/medium/low’ relevance assessed? The guidelines say:
The high-level aggravating factors are:
* force used or threatened against the victim;
* a victim injured (as a result of force used or threatened);
* an especially traumatic effect on the victim, in excess of the trauma generally associated with a standard burglary;
* professional planning, organisation or execution;
* vandalism of the premises, in excess of the damage generally associated with a standard burglary;
* a racially aggravated offence;
* a vulnerable victim deliberately targeted (including cases of ‘deception’ or ‘distraction’ of the elderly).The medium-level aggravating factors are:
* a vulnerable victim, although not targeted as such;
* the victim was at home (whether daytime or night-time burglary);
* goods of high value taken (economic or sentimental);
* the burglars worked in a group.However, it must be borne in mind that there is no clear line between the categories and they can overlap. The Court offered an example of a case that could overlap the two categories; this could be where the victim is especially old, say in his 90s, but is not shown to have been targeted because of this.
It’s clear that Dominic Wong’s burglary of Safa Moustafa was at the very least in the medium category. Whether it was in the high category is less clear… but this is precisely where the judge’s discretion is supposed to come in, highlighted by the “there is no clear line between the categories” in the sentencing guidelines.
As long as the burglary is not clearly not in the high category (sorry for the tortuous phrasing there, but it’s an important point), the judge can sentence it as a ‘high’ offence. The Court of Appeal only overturns sentences that are clearly wrong according to the guidelines, not ones that involve a harsh or a charitable – but reasonable – interpretation.
In other words, if Judge Smith had said “the victim’s trauma and vulnerability in this case raise it into the ‘high’ category, and I therefore sentence you to 18 months in jail [minus a bit for guilty plea, youth, contrition etc, but this'd be months off rather than reducing it back to a community sentence]“, then although Mr Wong might have been considered unlucky compared with an offender faced with a more lenient judge, the offence would have fallen within the guidelines and he would have gone to jail with no opportunity for comeback.
Instead, Judge Smith has ensured Mr Wong won’t be sent to jail (there isn’t any scope for the Court of Appeal to impose a harsher sentence, since the guidelines can be interpreted either way) despite having the power to do so, while also fuelling inaccurate public perceptions both about lack of judicial discretion and about bleeding-heart courts never punishing anyone.
In the absence of the ability to read the judge’s mind, we can only speculate as to whether this involves his mere inability to do his job properly, or whether he was making a deliberate piece of political grandstanding at the expense of doing his job properly. But either way, it’s another example of the right-wing press grossly distorting the truth to push their ‘liberal criminal justice lobby don’t care about the victims’ agenda – and the fact that nobody in the press appears to have bothered looking up the guidelines to compare against Judge Smith’s comments is deeply depressing.
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John Band is a journalist, editor and market analyst, depending on who's asking and how much they're paying. He's also been a content director at a publishing company and a strategy consultant. He is a regular contributor to Liberal Conspiracy and also blogs at Banditry.
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17 responses in total ||
I think he might still count as a lenient judge even though in this case it is due to incompetence rather than intention. The system itself is still failing to put dangerous convicted criminals behind bars. For example, if he is such an idiot, why can’t we (the people) fire this judge (subject to some checks and balances of course)? And isn’t 18 months a bit of a low starting point for burglary with threats of violence?
“isn’t 18 months a bit of a low starting point for burglary with threats of violence?”
yezbut:
1) it’s unusual that burglary with threats of violence would be a first offence
2) it’s unusual that burglary with threats of violence wouldn’t also meet the other aggravating criteria (if you’re any of the ‘high’ criteria that means 18 months, if you’re more than one, or if you’re also under the ‘medium’ criteria or the ‘other’ criteria, then that means longer)
You’d need to be a first-timer robbing someone non-vulnerable who wasn’t left traumatised by the threats of violence, acting alone and unplanned, not getting away with anything valuable, not committing the offence at night or out of spite, and not smashing up the premises, to get the 18 months. That’d be tricky to achieve, I reckon.
I see. But of course, since it is now a rarity for criminals to serve their full sentences, in fact the people who did end up serving 18 months would be those whose offences did include some of those aggravating factors and so ended up with an official sentence of… I dunno 3-5 years?
I think I would rather serve a prison sentence in all honesty than the 240 hours of community service which was handed down – which would probably take longer to fulfil over time than the sentence itself.
Thats assuming he does it, which is also a rarity.
In my opinion the majority of the judiciary are closet Tories. I am not saying it is so in this case, but it seems a lot of the legal decisions based on the human rights act have been deliberately misinterpreted to cause embarrassment to the govt.
Independent judiciary? Don’t make me laugh!
Why not 10 years for burglary? The poor are those who suffer the most. Many cannot afford the contents insurance or will not claim because they already have high premiums( they live in an area of high crime) and are worried about these increasing . Burglary and mugging has the greatest adverse impact on the poor not the middle and higher income groups.
The poorest also steal from the poorest, for obvious reasons.
Well the criminal preys upon the victim – that is the important distinction in this case. Just because you are poor doesn’t mean you MUST be a criminal, or that the fact that you are not is purely contingent. People can choose not to commit crimes. The fact that the criminal is poor (or not as the case may be) is immaterial. The point is the victims are often poor and, as a consequence, are less likely to see justice as they don’t have enough pull on the political system.
As I write this, the BBC has reported a ‘media storm’ about the BBC’s Ross/Brand fiasco. Both that and the Judge Smith story show how weak our institutions now are that they cannot counter media activity that is both inept and deliberately provocative. That informed and decisive questioning of the executive now takes place more in the Lords than in the Commons (or even in the slightly better Commons Select Committees) is another piece of evidence.
Sally,
it seems a lot of the legal decisions based on the human rights act have been deliberately misinterpreted to cause embarrassment to the govt.
Do you have any in particular in mind?
Nick,
The fact that the criminal is poor (or not as the case may be) is immaterial.
If the poor commit more crime, it follows that reducing poverty may reduce crime.
I suspect there are other guidelines which you have not featured, which prevent him from jailing the scumbag, especially with this Govt’s record of interference with the criminal justice system.
So why is it “another example of the right-wing press grossly distorting the truth”? Are you saying the Judge did not say this, which is what the press are reporting? I reckon your “right-wing” paranoia is generating your own distortion.
One thing I will agree with you is that many Judges/Magistrates are not competent. In my experience their lack of life skills can allow defendents to pull the wool over their eyes.
Chavscum: no, there aren’t. Those are the sentencing guidelines for domestic burglary. The way the law works in Englandandwales is that the judge can impose any sentence from an absolute discharge up to the legal maximum (in burglary’s case, 14 years). However, the defence and prosecution both have the right to appeal against that sentence. The Court of Appeal is bound solely by legal precedent and published sentencing guidelines when adjudicating on such appeals. There is no ‘secret’ advice, and there are no ‘other guidelines which I haven’t featured’. And the right-wing press are distorting the truth because the judge’s comment of “wicked government prevent me from punishing scumbag” fits with their narrative about the justice system and hence they’ve reproduced it uncritically – whereas an honest article would have actually tried to establish whether the judge’s comments were true.
It may fit the general attitude towards UK justice that some papers like to cover, but they reported what the Judge stated. Your distortion is just as bad because you promote the typical leftist comment of “Daily Mail Lies” in response to any news item that does not fit their rhetoric.
Do the left-wing media delve into details to establish the technical background of comments from public figures? I think not, especialy when reporting Labour Govt press releases. Remember the Guardian’s front page report on the Police Chiefs Ass. report on immigration? They wrote a headline story to fit their pro-mass-immigration agenda without even reading the report, and were then humiliated. Its good to be cynical of both the media and rants on blogs.
“Nick,
The fact that the criminal is poor (or not as the case may be) is immaterial.
If the poor commit more crime, it follows that reducing poverty may reduce crime.”
- “May” being the operative word, as there are plenty of other things that might be correlated with poverty that are more closely related to criminal behaviour, such as lack of education or stable family life or drug abuse. In other words, handing people more cash, you might well be treating a symptom rather than a cause. I am sure some property crime is purely acquisitive but I am not convinced it is all that much. I have a feeling that in most cases (and the more serious cases) things like addiction to drugs will make it rather difficult to solve the problem by handing out money to those at risk of committing crimes. It might even be counterproductive.
“Do the left-wing media delve into details to establish the technical background of comments from public figures?”
Yes. And the Grauniad were, err, right on the rozzers’ migration report, whilst the right-wing media, err, lied.
http://www.ministryoftruth.me.uk/2008/04/18/immigration-crime-and-statistics-abuse/
“I am sure some property crime is purely acquisitive but I am not convinced it is all that much”
What, you think people burgle and shoplift and con and pickpocket because they love it? I’m sceptical.
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