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Jo C.
Jo C., Barrister
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Experience:  Over 5 years in practice
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I have a question related to sentencing which I can't

Customer Question

Hello,
I have a question related to sentencing which I can't seem to find an answer for in any published material online.
I have been charged with common assault recently. With getting into the details of the offense, I have been to a pre-trial hearing and entered a plea of not guilty. I have been advised by a solicitor that should I be found guilty the seriousness of the offense will fall into category three (lower harm and culpability), but there is a chance that since it was classed as domestic violence it might fall into category two. The trial is set for two months from now.
Here's where it gets complicated for me... I am a non-resident (non-EU) foreign national with no residence status. I flew from overseas for the pre-trial hearing and intend to fly over again for the trial.
If I were to be sentenced under category two, that would normally mean I would be looking at a community order. What would that mean for me in this case? I am a very high earner but my job, home and family are overseas. I am the sole earner for my family.
Would a magistrates court likely give me a stiff fine in place of a low/medium level community order, considering the circumstances? Or would they just sentence me anyhow to a community sentence that I wouldn't be able to comply to? Or worse, would they sentence me to custody causing me to lose my job and effectively ruin my life? I have no prior convictions.
thanks
Submitted: 10 months ago.
Category: Law
Expert:  Jo C. replied 10 months ago.

What are the facts of the offence?

Customer: replied 10 months ago.
My wife's friend had her kids over for a sleepover six months ago. The oldest kid (12 years old) was unruly when I was trying to put them to bed and he was bullying my son (9 years old) in front of me. I restrained him briefly and also grabbed his arm. After he settled down I led him into another bedroom and my wife put him to bed separately from the other kids. When the kid went home he produced a bruise on his chest and claimed that I had hit him. The mother then called my wife and an argument erupted. The kid admitted that I didn't hit him, but that I had grabbed him and had hurt him in the process. I admit grabbing his arm (not his chest) but deny hurting him.This has been very stressful for me, in fact it's the worst thing that's ever happened to me.
Expert:  Jo C. replied 10 months ago.

I’m afraid that it not realistic to expect a fine for an assault upon a child. There is no way around it. That is a specific aggravating feature.

I would expect them to consider a community order.

They will not impose an order that you cannot perform. If probation accept you cannot complete then they will not impose it. There is no sense in doing so.

However, if you are working here then an unpaid work order is a possibility.

They could sentence you to custody. They will not be keen to do that but if you refuse all community orders there may be no choice. The key is not to refuse all offers of orders.

Can I clarify anything for you?

Jo

Customer: replied 10 months ago.
Thank you.I am not working in this country and I do not live here either. I can enter the country for 90 days at a time using my passport without a visa.Would there be any community order that I would be able to complete under these circumstances? If I only had to complete unpaid work hours and were not required to report to a probation officer weekly for example, I might arrange to fly back a couple of times during the year for "unpaid work vacations", is that realistic?I am willing to comply with probation however I can, but my circumstances will make it difficult.
Customer: replied 10 months ago.
Also, I have read that there are fine bands "D" and "E" that can be used to replace community sentences in exceptional circumstances. Would this not be considered as such?
Expert:  Jo C. replied 10 months ago.

I’m not sure an order is realistic then. They could impose an order but you would need to return weekly to complete it.

They could impose a suspended sentence with an order like a limited amount of unpaid work.

Customer: replied 10 months ago.
Thanks, ***** ***** encouraging. If found guilty then I suppose I have to just hope that they won't impose something that will ruin me. Ultimately they would be punishing my wife and children.
Expert:  Jo C. replied 10 months ago.

They are not going to want to impose custody.

The only reason it would even be considered is that community orders might just be unworkable here.

Expert:  Jo C. replied 10 months ago.

The only other thing I can think of is some form or prohibited activity order but I'm not sure that is appropriate really.

Customer: replied 10 months ago.
Thanks. I'm not sure I've been well advised through all of this. My solicitors who I've paid a lot of money are still insistent that my prospects are strong at trial and that a fine would be a realistic outcome even if convicted. During the police investigation the officer in charge was willing to pursue a caution but the solicitors advised against it... I'm sure they had the thousands of pounds that would be paid to them to build a case for trail in mind. Police mentioned several times to myself and my wife that they considered this a very minor incident.
Expert:  Jo C. replied 10 months ago.

Oh yes, they will consider it a minor incident. Applying common sense it is. You disciplined a badly behaved child.

Expert:  Jo C. replied 10 months ago.

And his parents have come forward because they have heard the ringing of the tills.

Expert:  Jo C. replied 10 months ago.

It is not even the worst form of assault.

The only reason that is a fine is not going to be comfortable though is that it is an aggravating feature of the offence of common assault that the victim is a child. That is what happens when Parliament gives us sentencing guidelines.

Expert:  Jo C. replied 10 months ago.

I don't know whether or not they would still accept a caution? Sometimes they do refer it back to the police for a caution.

Customer: replied 10 months ago.
Thanks, ***** ***** that route already and it was rejected by police. The officer in charge was annoyed that we'd turned it down after she had approached her supervisor with it. It was also after she had tried a restorative disposal which the complainant's mother rejected. The kid did really lie and we might well win in court but I know there are no guarantees.I've read also about foreign national deportation but I think it only applies to offenses which carry at least a year custody.Many chastisement cases do end up being conditionally discharged I read, but the victim seems to be the offender's child in these cases as opposed to someone else's
Expert:  Jo C. replied 10 months ago.

Yes, there isn't a risk of deportation.

Chastisement is a problem. Generally speaking, it is run by parents.

Expert:  Jo C. replied 10 months ago.

Actually though it can be run by those in loco parentis and you could argue that you were here.

You may win in court. You never know with Magistrates. I can see why your solicitors want to run it.

Expert:  Jo C. replied 10 months ago.

Before a jury you would get off with this nonsense.

Customer: replied 10 months ago.
The case will be heard by a single district judge.If I were to appeal a guilty verdict, would it be heard by a jury in crown court, or would it be only a panel of judges?
Expert:  Jo C. replied 10 months ago.

No, it goes to a Judge and two Magistrates.

The appeal constitution is not much better than the Magistrates Im afraid.

Customer: replied 10 months ago.
Sorry one more question if you don't mind. What are the differences between a community order and suspended sentence, with respect to supervision from probation. If a suspended sentence is imposed, is it accompanied necessarily by a requirement to make regular visits to a probation officer, as seems to be the case with a community order?Thanks
Expert:  Jo C. replied 10 months ago.

There would have to be a community order element to a suspended sentence. It cannot be stand alone normally. Sometimes there can be orders that don't require much though.

I'm happy to continue with this but please rate my answer.

Jo C., Barrister
Category: Law
Satisfied Customers: 69786
Experience: Over 5 years in practice
Jo C. and other Law Specialists are ready to help you
Customer: replied 10 months ago.
Hello,Just an update, my legal team has since given me a bit more of an explanation of their rationale.There is a separate set of sentencing guidelines specific to assaults on children which was published in 2008:https://www.sentencingcouncil.org.uk/wp-content/uploads/web_Overarching_principles_assaults_on_children_and_cruelty_to_a_child.pdfThese guidelines suggest that if the court were to accept the following:1) The assault occurred through the course of chastisement
2) The level of harm was not serious
3) The offender did not foresee that his actions would result in physical harm and that physical harm was not reasonably foreseeableThat a disposal such as a conditional discharge or fine could be considered appropriate.Do you agree with this?
Expert:  Jo C. replied 10 months ago.

I don't think you can rely on it to be wholly honest.

It is possible but you cannot rely on it.

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