Shebani, R.

Factual and Procedural Background

This opinion concerns a renewed application for leave to appeal a determinate custodial sentence of five years, half to be served in custody and half on licence, imposed on the Applicant following a guilty plea to unlawfully displaying force and making an affray contrary to common law. The Applicant was initially committed for trial on charges of grievous bodily harm with intent and possession of an offensive weapon with intent. Subsequently, a count of affray was added to the indictment, to which the Applicant pleaded guilty, leaving the original counts on the books. The sentence was imposed by the trial judge on 25 September 2021.

The facts underlying the offence are that on 18 October 2019, the Applicant, motivated by an allegation of sexual impropriety involving a friend of the victim, armed himself with a Stanley knife and, together with a co-accused, attacked a man in a public place in The City. The victim sustained a significant 12cm facial wound requiring stitches and permanent scarring, as well as lesser injuries. The affray was witnessed by multiple members of the public and lasted approximately one minute, with the most intense violence occurring over about 10 seconds.

The Applicant is 37 years old with 33 previous convictions in the Republic of Ireland, including violent offences and possession of a knife, and one minor conviction in Northern Ireland. A pre-sentence report noted the Applicant’s personal circumstances, including unemployment, mental health struggles, and a medium likelihood of reoffending, but no risk of serious harm to the public.

Legal Issues Presented

1. Whether the starting point of nine years for sentencing the offence of affray was manifestly excessive and wrong in principle.
2. Whether the sentence imposed was disproportionate given the nature and duration of the affray and the Applicant's role.

Arguments of the Parties

Appellant's Arguments

• The starting point of nine years was too high and more appropriate to a charge of grievous bodily harm with intent.
• The trial judge failed to properly consider that the affray was a self-contained incident of short duration (six to eight seconds) with an element of spontaneity.
• The Applicant initially raised an issue of sentencing disparity but chose not to pursue it.

Respondent's Arguments

• The offence of affray is distinct from grievous bodily harm offences and carries a maximum sentence of life imprisonment, so comparisons with other offences are inappropriate.
• The affray involved serious aggravating factors including the use of a weapon, pre-planning, and significant injury to the victim in full public view.
• The sentence imposed was within the appropriate range given the nature of the offence and the Applicant’s conduct.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
DPP References No 2 and 3 of 2010 (Seaward and McAuley) [2010] NICA 36	Sentencing range for section 18 grievous bodily harm with intent (7-15 years).	Referenced by defence for comparative purposes but rejected as affray is a different offence.
R v McArdle [2008] NICA 29	Use of knife in a public place in violent offences.	Used to illustrate the serious nature of knife offences and to reject the notion that affray is lesser than grievous bodily harm offences.
Att-Gen's Ref 1 of 2006 [2006] NICA 4	Difficulty in devising sentencing guidelines for affray due to its variable nature.	Supported the court’s approach that sentencing must consider the particular facts and impact on the public.
R v Keys (1987) 84 Cr App R 204	Affray’s variable nature and difficulty in formulating sentencing frameworks.	Quoted to reinforce the principle that affray sentencing requires case-by-case assessment.
R v Magee [2007] NICA 21	Sentencing for wanton violence involving weapons and the need for sentences to reflect society’s condemnation.	Emphasized the necessity of condign punishment for violent offences involving weapons, applied in assessing the appropriateness of the sentence.

Court's Reasoning and Analysis

The court began by outlining the nature of the offence of affray as a common law public order offence punishable by life imprisonment, distinct from offences of grievous bodily harm. It emphasized the importance of considering the impact on innocent members of the public present during the affray. The court agreed that sentencing guidelines for affray are not feasible due to the wide variety of circumstances and participation involved.

The court identified relevant factors for sentencing affray: number of participants, duration, ferocity, use of weapons, injuries sustained, presence and proximity of the public, and local conditions. The court then applied these factors to the facts, noting the deliberate initiation and pre-planning of the affray by the Applicant, the use of a Stanley knife, the serious injury inflicted, and the public setting.

The court rejected the Applicant’s argument that affray should be treated as a lesser alternative to grievous bodily harm offences or capped by their sentencing ranges. It found that the starting point of nine years was excessive and clarified that a starting point should reflect the sentence after a contested trial, before reduction for plea. Applying the court’s framework, it concluded a corrected starting point of seven and a half years was appropriate.

Allowing for a one-third reduction for the early guilty plea, the resulting five-year sentence was deemed a stiff but not manifestly excessive sentence, given the aggravating factors and the need to mark society’s condemnation of violent offences involving weapons in public. The court acknowledged the short duration of the affray but did not consider this mitigating in light of other factors.

Holding and Implications

The court granted leave to appeal but DISMISSED THE APPEAL, upholding the five-year custodial sentence imposed by the trial judge.

The decision confirms that affray is a serious offence distinct from grievous bodily harm offences, with sentencing to be guided by an assessment of the affray’s nature, public impact, and offender’s role rather than by fixed guidelines or comparison to other offences. The ruling underscores the judiciary’s commitment to imposing sentences that reflect society’s condemnation of violent, weapon-involved public disorder offences. No new precedent was established beyond the reaffirmation of established principles relating to affray sentencing.