Asmelash, R. v [2019] EWCA Crim 1653

[2019] EWCA Crim 1653
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice Strand London, WC2A 2LLDate Friday, 7 June 2019
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE LAVENDER
HIS HONOUR JUDGE EDMUNDS QC
R E G I N A v
SOLOMAN ASMELASH
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Mr N Evans appeared on behalf of the Appellant
Mr J Traversi appeared on behalf of the Crown
J U D G M E N T
Between
AsmelashDefendantRCrown
[1]give evidence. In her sentencing remarks,

the judge described the appellant's role in the incident as follows:

[2]"And it all started because you, Mr Asmelash wanted to get inside and you were refused entry for quite proper reasons. You persisted in your attempts to get inside and despite the patience of Mr Garney and Mr Rai, your co-defendant, who had been asked to help and who was sober, unlike you, you kept on and on and on. In the end it seems that Mr Rai having himself being struck in some way and his colleague being struck in some way, lost patience and so gave you a very hard shove to get you away. At this point you invited him around the corner, foolishly he did go around the corner, as did numerous other people. It was at this point that belts came off and you Mr Asmelash I'm quite sure was the first person to do so. From that point more and more belts came off. They were swung around and they were used as whips and from there, there was mass violence which escalated very quickly and very seriously with multiple and various missiles as I have described being used."

She went on to say:

[3]"You, Mr Asmelash, were under the influence of alcohol. In fact, you have very little recollection of what took place that night. You, quite clearly in my view, started the trouble. You were the first to take your belt off and struck out with it. Had it not been for that it may well be that no-one else would have done the same. You also threw punches. At various points, you could have retreated as the violence started and escalated, but you made repeated decisions not to. Your friends on several occasions tried to persuade you to leave but you did not. Mr Mahari, I note to his credit, was one of those men." And in relation to Mr Mahari,

the judge said:

[4]"Mr Mahari, you threw multiple missiles in the course of this disturbance and you had your belt off. At one point you also took a crate to use as a weapon, although your subsequent use of it was in defence of [Mr Asmelash] who was at that point being kicked in the way that I have described. You, yourself, did make initial attempts as I have said to make peace and to try and get others to move away. You were also not there as the violence started but as you rejoined your friends who you had left temporarily to go and buy cigarettes, you found yourself in a scene that was very quickly escalating and despite your unsuccessful attempts to make peace and to make others move away, you then joined in." Finally, in relation to Mr Rai,

the judge said:

[5]"Mr Rai, you had for a long time tried to diffuse this situation. You were asked by others to do that very thing. Only when others took their belts off so did you, but you didn't need to do so. There were others who were there who did retreat inside the pub. Whether it was lack of judgment, a willingness to join in or an unwillingness to leave those outside the pub, you did join in and the truth is, the reality is, you did not have to. You were seen repeatedly swinging your belt around, but I accept that at no occasion can I see that the belt that you were swinging make contact. You did then, however, chase after Mr Asmelash and were at the back of the group that then started to kick him as he lay on the ground having tripped over his own trousers." The judge said that she decided to suspend Mr Rai's sentence because of his significant personal mitigation, the role he played and the amount of time he spent trying to defuse the situation before he reluctantly became involved.[6]character.[7]of community and custodial sentences and said that his sentence had to be immediate because of all the circumstances and his role. In effect, she was saying that his was a case[8]where appropriate punishment could only be achieved by immediate custody.[9]before us, Mr Evans did not press the first ground of appeal very far.[10]and maximised that of others, particularly Mr Rai.[11]submissions at trial in the light of that evidence and we are not in a position to conclude that

the judge's assessment of the roles played by the individual defendants was wrong.

[13]something had gone wrong with the administration of justice?”[14]given by the judge.[15]for his personal safety.[16]paragraph 16) as setting out the correct approach:
"In the case of public disorder it is important for the court to look at the whole picture, and although what an individual may have done by himself is of relevance, that is simply part of the whole to which he is contributing in his way, and the larger picture must be taken account of."
[17]"It is an unavoidable feature of mass disorder that each individual act, whatever might be its character taken on its own, inflames and encourages others to behave similarly, and that the harm done to the public stems from the combined effect of what is done en masse."[18]fear for their personal safety. Indeed, it resulted in a broken wrist for one individual.[19]excessive.[20]a custodial sentence which were applicable in this case were “Strong personal mitigation”[21]and “Realistic prospect of rehabilitation”.[22]sentence.[23]to suspend a custodial sentence was “Appropriate punishment can only be achieved by immediate custody”. This was a serious episode of group violence and the judge identified the respects in which the appellant not merely participated in the incident, but also instigated[24]and encouraged violence.[25]ought to have concluded that it was appropriate to suspend the appellant's sentence.[26]16 months' imprisonment, suspended for 2 years. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk