Assault by Beating: Sentencing for First-Time Offenders

What is Assault by Beating?

Assault by beating is set out in section 39 of the Criminal Justice Act 1988 and is a variation of the offence of Common Assault. Assault by beating refers to a common assault where physical force is applied. It is sometimes referred to as battery.

To establish the offence of assault by beating, the prosecution must prove that the individual has committed an act which caused another person to suffer immediate unlawful violence; that the victim did not consent; and that the conduct was intentional or reckless. While physical force is required, it does not necessarily have to cause injury and can include things such as purposefully spitting on someone.

Please see the following blog to find out more about the offence of Assault by Beating.

Sentencing for a First Time Offence: Am I Going to Prison?

While assault by beating is a summary only offence, meaning it can only be tried in the magistrates’ court, it can result in a custodial sentence of up to six months. When deciding the sentence, however, the fact that you are a first-time offender will be taken into account. Therefore, if it is a first-time offence without any aggravating features, it is possible that you could receive an alternative outcome other than a custodial sentence, although this will still depend on the circumstances of your case.

When considering an appropriate sentence for assault by beating, the magistrates or district judge will take into account a number of factors, both mitigating and aggravating. Aggravating factors include an abuse of power, commission of the offence while under the influence of alcohol and drugs or attempts to prevent the complainant from reporting the incident. Mitigating factors may include an offender’s remorse, their cooperation with the police and the fact that they are a first-time offender. These mitigating circumstances, including being a first-time offender, may help to bring the sentence down from a custodial sentence to an alternative outcome, ranging from a discharge to a suspended sentence:

Suspended Sentence – When an individual is given a custodial term of 2 years or less, the magistrates or district judge may exercise their discretion to suspend the sentence for up to two years. This means that the individual does not go to prison immediately, and is instead given the chance to ‘stay out of trouble’ for a set period of time and to comply with court requirements, such as unpaid work or rehabilitation schemes. Where an offence of assault by beating is serious enough to attract a custodial sentence, the fact that an individual is a first time offender may help to persuade the tribunal that the term of imprisonment should be suspended.

Community Order – For less serious assault by beating offences, a common outcome is a community order. A community order combines a form of punishment with activities carried out in the community. These activities may include unpaid work, alcohol or drug treatment or keeping a curfew. Many of these activities are designed to help an individual change their behavior and prevent them from offending again. Therefore, they are likely to be considered in a case of a first-time offender of assault by beating.

Fines – In other, lower-level offences of assault by beating, a fine may be considered commensurate. Fines are reserved for lower-level examples of this offence. Under certain circumstances, being a first time offender may help to persuade the sentencing court to depart from the guidelines and reduce the sentence down from a community order to a fine. However, it is unlikely that this factor alone would be sufficient to persuade the court to take such action.

Discharge – In very rare cases, a discharge may be ordered instead of a fine or community order.  A discharge can be absolute or conditional. It means that, following conviction (a finding of guilty), they are released from court without further action due to the low level nature of the offence. If the discharge is conditional, there will be a requirement that they stay out of trouble for a certain period of time. However, the individual will still receive a criminal record. Discharges are relatively rare, with only 3% of offenders receiving a discharge per year.

Out of Court Disposal Options

An out of court disposal option is a way for the police to deal with less serious crimes without an individual having to go to court (and therefore receive a sentence). An out of court disposal option may be available for lower-level assaults where no injury has been caused and where the suspect admits the offence and shows remorse. When considering whether or not an out of court disposal option is appropriate, one thing the officer may consider is the suspect’s offending history.

There are two main types of out of court disposal options, namely community resolutions and cautions:

• Community Resolution – a community resolution may be offered to a first-time offender who has committed an assault by beating. It is likely to include requirements, examples of which could include an apology to the victim, an offer of compensation or rehabilitative activities.

Caution – A police caution is a formal warning from the police and can be unconditional or conditional. As it suggests, conditional means that the caution comes with requirements that the individual must follow, and failure to do so could result in the individual being charged. A Police Caution is not a criminal conviction; however, it will be recorded against your name on the police national computer and may be mentioned if you appear in court on a future occasion. You do not need to disclose a Police Caution when asked about criminal convictions. This form of disposal is deemed to be “spent” immediately under the Rehabilitation of Offenders Act 1977. However, the police may disclose that you have this Caution if a full Disclosure and Barring Service (DBS) check is requested. Also, if your employer or potential employer is entitled to enquire about Cautions, then you would be committing an offence if you failed to disclose it. This is rare and will only apply to certain types of employment.

Aggravating Features

There are certain types of assault by beating which will be aggravated, even if you are a first-time offender. These include assault by beating of emergency workers, assaults which are racially or religiously aggravated and domestic assaults. If any of these circumstances apply, then the sentence is likely to be escalated.

• Assault of Emergency Worker – assault on an emergency worker is a specific criminal offence under the Assault on Emergency Workers (Offences) Act 2018. Unlike with a standard assault by beating, an assault on an emergency worker is triable either way, meaning it is triable in either the magistrates court or the Crown court, and therefore carries a higher maximum sentence of a two-year custodial sentence.
• Racially or Religiously Aggravated Offence – the sentence will also be uplifted if the assault is racially or religiously motivated. In these circumstances, these cases will again be triable either way and carries a higher maximum custodial sentence of two years.
• Assault in a domestic context – although there is not a separate offence, it is likely that the sentence will be uplifted if it has been committed in a domestic setting.

It can be worrying when accused of or charged with an offence of assault by beating, especially for a first-time offender. While a lack of previous offending history is likely to help mitigate your case if charged, assault by beating is still a serious offence and can result in serious consequences and so it is important to seek proper legal advice.

If you are facing an investigation or prosecution of assault by beating, you can contact one of Old Bailey Solicitors’ specialist criminal solicitors who will talk you through your options and provide you with the best advice possible to help you move forward.