Help For Affray Sentance Please

[pk1971pk]

hi

I would like some legal help on possible charge to help me stop making myself worry sick !

I have pleaded guilty to an affray charge, football related, no injuries, no property damaged, no weapons etc
at plea entry tried to get charge reduced but they would not - 3 other co defendants also being charged with the same affray

in short we entered a train station my friend was punched, and the trouble then spilled into the concourse area - nothing really major few air punches thrown and cctv shows very clearly the people trying to attack me first, I then run over and hot someone involved to the floor and at that split moment the police arrive and arrest me - whole incident only lasted 3 or 4 mins but does show very clearly me hitting someone

barrister thinks iam 50/50 for actual prison or suspended sentence

I have no previous record, got a good character, business person and stable family man - is it right I should be this worried about being given actual prison? I know I have done wrong but cant believe prison can be handed to me as punishment all things considered ? genuinely wrong place at the wrong time - iam back in jan for sentencing - currently awaiting interview for pre sentence report
going to prison will wreck my life, lose my business and the knock on efforts to then loss of job would be cant afford the mortgage etc etc

feel sick

thanks

[hammerman]

Blimey mate. I honestly can't see you going away for that. Im no expert but a fine and maybe a bit of community payback would be my guess.

Good luck fella

[Buenchico]

Your barrister is probably right in indicating that "it's too close to call".

Unlike offences prosecuted under assault charges (e.g. 'ABH' or 'GBH') there are no written guidelines for judges to refer to when sentencing. So, unlike, such cases, we can't simply take a look at what the judge has to read and try to predict how he might think.

However the fact that you refer to a barrister, rather than a solicitor, suggests that the case has been referred to the Crown Court which, in turn, suggests that the magistrates thought that their sentencing powers (of up to 6 months imprisonment) might not be sufficient to deal with the matter. That, though, should not be taken as an indicator that a prison sentence is inevitable, as judges often see things very differently to magistrates.

Despite the absence of formal guidelines, however, judges are required to consider precedents set by courts in the past. In R v Fox and Hicks, in 2006, the judge was required to consider sentencing in respect of affray convictions where there was no direct ('one-on-one') violence between opposing football fans but where debris had been thrown and threats made. Hicks (who was 25, and with previous convictions) was sentenced to 12 months imprisonment. Fox (who was 35, a family man and with no previous convictions) was shown to have participated to a lesser extent but he was still sentenced to 8 months in prison.

The judge will almost certainly pass a custodial sentence (probably of around 8 months, considering the similarity of your offence to that of Hicks - although possibly rather longer because of the 'one-on-one' attack). He will then have to consider whether that sentence can be suspended. If I was a betting man I'd probably put my money on him choosing to do so (simply because I've observed lots of Crown Court cases and know that most judges do try to keep people of prison wherever possible) but I'd still advise packing a bag before you attend court because, as your barrister says, it's '50/50' really.

[pk1971pk]

Thanks for the replies.

Iam trying to get my head around it all still at the moment never once thought I would get away with nothing but never thought I would be staring at actual prison considering all the facts and when Iam reading what other people get punished for breaking the law it seems even more unfair in my opinion.
Iam really hoping my character etc will sway his decision to suspend the sentence.

Yes it's at crown court sorry didn't mention this.

Will all 4 of us get the same sentence or will everything be down to each defendents personal circumstances and history etc ?

Thanks

[Buenchico]

It will be down to individual circumstances and, to a certain extent, the skill of your barrister in persuading the judge to suspend the sentence.

[EDDIE51]

Hope you get through this without prison. But there is a lesson here for those on AB who say 'prison is too soft or easy'
Here we have a person who due to a few moments of 'madness' could lose their home, business and family. I have said before it is not prison itself that is the punishment it is the loss of freedom and the results of that loss. Over 75% of people who are imprisoned for even a very short time NEVER work again such is the stigma of being an 'ex con'

[New Judge]

Personally I believe custody is unlikely.

There are guidelines for the offence of Affray and they are shown on page 85 of this document:

http://sentencingcouncil.judiciary.gov.uk/docs/MCSG_%28web%29_-_October_2014.pdf

I am assuming that your case has been retained in the Magistrates' court. Affray is a Public Order Act offence and, unlike "true" offences of violence (Assault, ABH, GBH) the seriousness is not dependent on the level of injuries caused, but is more concerned with the level of disorder. You can see that before custody is considered there has to be "...a degree of fighting or violence that caused substantial fear." From your description that does not obviously appear to be the case so if your barrister believes there is a chance of prison he must know something that you have not told us.

You are of previous good character and you have pleaded guilty which will both help your case.

[Buenchico]

N_J:
Thanks for correcting me with regard to the existence of sentencing guidelines for affray. (That's the second time I've been misled by the CPS website, which says that such guidelines don't exist).

However your assumption that the case has been retained in the Magistrates' court is incorrect. (See the post at 1854 yesterday). Does that change your view at all?

[New Judge]

Easy done, Chris. Virtually all Either Way offences are included in Magistrates' Sentencing Guidelines so it's usually a good place to start.

Yes my view has changed. I don't know why I assumed this had been retained in the Magistrates' Court. Teach me to read the thread properly.

Since a guilty plea has been entered, the matter going to the Crown Court for sentencing shows it in a different light. The decision to send it there would have been taken by the Bench (the defendant can only elect for the case to be heard at the Crown Court in the event of a not guilty plea). It is clear that in making their decision the Magistrates know a lot more than we have been told. They clearly believe their sentencing powers are insufficient. One thread of hope for pk is his previous good character and his early guilty plea. These taken together (especially his clean record) may allow the judge to suspend any custodial sentence.

[pk1971pk]

Hi
Thanks again for taking the time to reply.
I have told you everything Iam sure, warts and all.
The incident only last for a few minutes. No injuries and no damage.
2 of the people who started the attack are very well known so Iam sure hey are going after them and Iam caught up also.
This is what I also find mental I can be facing jail for what it is when I read other crimes and what people get charged.
When I read that guideline on page 85 - I would say I fall in this area.
Degree of fighting or violence that causes substantial fear
High level community order
Medium level community order to 12 weeks custody

This is for someone pleading not guilty so me pleading guilty does this mean I will get some discount for this and the range does that mean worst case ?
Iam a bit lost from that article sorry.

Any more help would be grateful.

I guess it just comes down to the judge on the day and guess the more unlikely than likely of going to prison the easier I would feel.

Do you suggest any tips to help me what to say at pre sentencing or should I just be myself and speak from the heart ?

Thanks again
PK

[New Judge]

In making their decision to send you to the Crown Court for sentencing the Magistrates use the guidelines I have provided. In pleading guilty you have accepted the facts of the matter as put to the court by the prosecution. The Bench must have considered that, based on those facts, the matter fell into the most serious sentencing range, that is "Fight involving a weapon/throwing objects, or conduct causing risk of serious injury". Furthermore they must have believed that, even with a one third discount for your guilty plea, the offence warranted more than the six months custody they can impose. (Bear in mind that the maximum sentence for this offence is three years).

As I said earlier, this is a Public Order Offence and as such damage or injury caused is not a consideration. (You can see that from "Examples of nature of activity"). It is the level of disorder that is considered.

As Buenchico has suggested, custody is not inevitable and your previous good character and guilty plea will go considerably in your favour. But whenever they consider a case where they believe their sentencing powers are insufficient the Magistrates must send the matter to the Crown Court.

[Buenchico]

Tell the Probation Service what they want to hear, Pk1971pk !

i.e. sound genuinely remorseful (and not just 'sorry for yourself'), showing your understanding (and regret) that you caused alarm to station staff and passengers. Indicate that you'd be happy to take part in a non-custodial punishment (such as unpaid work) and that you'd definitely comply with any requirements placed upon you.

My post here might be relevant:
http://www.theanswerbank.co.uk/Law/Criminal/Question1303423.html

[pk1971pk]

Thanks again for update

Iam trying to get my head around the law. How can they deem the incident to be such high level, no weapons no debris thrown and no serious threat of injury? This is very clear on cctv so don't know how they deem this level ?

When I pleaded guilty to this does this mean everything is admitted and agreed from the polices statement as to say they laid it on thick would be a huge understatement not to mention the police statements contradicted each other's and were not backed up by what actually happened on cctv.

Will the judge view the cctv before making his sentence up ?

I really feel they are out to make examples of these other 2 and Iam caught up in this and will also be made an example.

Thanks

[pk1971pk]

Thanks again for update

Iam trying to get my head around the law. How can they deem the incident to be such high level, no weapons no debris thrown and no serious threat of injury? This is very clear on cctv so don't know how they deem this level ?

When I pleaded guilty to this does this mean everything is admitted and agreed from the polices statement as to say they laid it on thick would be a huge understatement not to mention the police statements contradicted each other's and were not backed up by what actually happened on cctv.

Will the judge view the cctv before making his sentence up ?

I really feel they are out to make examples of these other 2 and Iam caught up in this and will also be made an example.

Thanks