When are domestic violence victims not “vulnerable”?

“Man who hit wife with bat and made her drink bleach spared jail after judge says she was 'not vulnerable'.”

Independent, 27 March 2017

“Domestic abuse victim blasts judge who spared cricketer husband jail 'because he didn't believe she is vulnerable'”

Mirror, 29 March 2017

“A man who beat his wife with a cricket bat and forced her to drink bleach has been resentenced to 18 months after he avoided jail at an earlier hearing by falsely claiming to have a job offer as a professional cricketer.”

Guardian, 7 April 2017

Mustafa Bashir, a cricketer, recently pleaded guilty to “assault occasioning actual bodily harm”. This is Victorian language for a crime that the Crown Prosecution Service will bring to trial in cases of “serious injury”.

Mr Bashir had, reportedly, struck his wife, hit her with a cricket bat, and attempted to force her to drink bleach.

The original sentence was 18 months suspended

The maximum sentence for assault occasioning actual bodily harm is five years in prison. The average jail sentence actually given to people found guilty of this crime in 2015 was just over a year.

Mr Bashir, though, was originally given a suspended sentence of 18 months. A suspended sentence means no immediate jail time, but Mr Bashir could later have been sent to jail to serve the 18 months if he didn’t comply with behaviour requirements set by the judge.

That changed on 7 April, when the case came back before Judge Richard Mansell QC. He found that Mr Bashir’s previous claim to have a professional cricket contract lined up was false.

As future employment was no longer a consideration in favour of suspending the sentence, Mr Bashir was re-sentenced to serve the 18 months immediately.

The judge looked at whether the victim was “particularly vulnerable” in setting the length of the sentence

Media reports had attributed the suspension of the sentence to the judge deciding that Mr Bashir’s wife wasn’t “vulnerable”.

As we suggested in an earlier version of this article, that’s not how it went.

On his own account, Judge Mansell said that “I am not convinced on the guidelines that [the victim] was particularly vulnerable due to her personal circumstances”.

Official guidelines require sentencing judges to look at whether the victim “is particularly vulnerable because of personal circumstances”.

Newspaper reports of how this was expressed in the courtroom are different:

“I am not convinced she was a vulnerable person.”

So whether through misreporting or the judge departing from his notes on the day, the impression arose that he didn’t consider the victim vulnerable at all. Judge Mansell was at pains to correct that impression at the sentencing review:

“I was doing no more and no less than making a finding, in accordance with the sentencing guidelines, that she was not particularly vulnerable as compared with other victims whose personal circumstances are different.

She was, however, plainly vulnerable, as my sentencing remarks made perfectly clear.”

But the victim’s vulnerability compared to other victims wasn’t relevant to the decision to then suspend that sentence

The victim being particularly vulnerable is one of several factors that judges have to consider in arriving at the right length of sentence.

If Judge Mansell had considered the victim “particularly vulnerable”, he might have calculated a longer sentence than the 18 months he eventually arrived at.

But it wasn’t a consideration when it came to deciding whether or not that 18-month sentence should be served immediately or suspended.

In taking the original decision to suspend the 18 months, Judge Mansell looked at the defendant’s previous good character, the delay since the assaults took place, his new relationship, employment—and the offer of future employment with Leicestershire County Cricket Club. The victim’s vulnerability didn’t come into that part of the decision.

Rightly or wrongly, “it is not uncommon for judges to attach significant weight to the impact of a sentence upon a defendant’s employment”, according to a criminal barrister writing about the case.

But when Leicestershire heard about the case, the club denied that any offer was on the table.

Crown Court judges have the power to change a sentence within 56 days, including where “further information relevant to the sentence has become available to the court”.

Judge Mansell used that power here, and sentenced Mr Bashir to go to jail immediately, having found “there is not a shred of evidence that you were ever chosen to play for Leicestershire”.

We know this because the Judicial Office circulated these latest sentencing remarks to its press list. They haven’t been published on its website, but you can download and read the remarks in full from ours.