Tag Archives: disparity of sentence

Judicial error allows defendant to avoid an immediate custodial sentence

Craig Swainson avoided a prison sentence for a late night street attack that left victim Sean Moss blind in one eye, after his co-accused was dealt with at youth court and was given a rehabilitation order

Craig Swainson, aged 21, and his friend D, aged 17 (and so cannot be named) attacked Sean Moss, leaving him blind in one eye, whilst drunk.

Mr Moss, now registered disabled and unable to work, suffered horrific facial fractures when he was knocked to the ground and kicked in the centre of Darlington, County Durham. Mr Moss has regained some sight in his left eye but may never be able to see properly again, Teesside Crown Court heard.

Swainson’s accomplice, D, was dealt with by the Youth Court. He received a Youth Rehabilitation Order.

Youth dealt with in the Youth Court

When Swainson was sentenced at the Crown Court, the Judge referred to D’s sentenced. He said that D should have been sent to the Crown Court to be dealt with. The Judge went on to say:

‘It seems to me that it would be harsh, indeed, if you were sent immediately to prison when your co-accused appears to have been dealt with in a very lenient way.

‘It would have been far better if he had been committed to this court for sentence so you could have both been dealt with together, and I see no reason why that could not have been done, bearing in mind he was 18.’

A CPS spokesman said: ‘The case of a youth defendant facing these charges could only be sent to the Crown Court if the adult co-defendant was to be tried there. 

‘It is not possible for youth defendants to be tried alone at Crown Court on these particular charges and as Craig Swainston, the adult defendant, pleaded guilty and did not face a Crown Court trial, there was no option but to send the youth defendant’s case to the Youth Court.’


Swainson received a 9-month suspended sentence. Recorder Bernard Gateshill, QC, said: ‘I have to take into consideration the way in which he was dealt with.’ An immediate custodial sentence seems appropriate, even on the scare facts we have from the news reports. 


The Judge was referring to a principle called disparity of sentence. This is where there is a perceived unfairness between the sentences received by two or more defendants in a connected matter – it cannot be used to provide examples of similar offences committed by unconnected defendants. An explanation of disparity is here.

The law is rather confused on disparity, but generally the Court of Appeal do not accede to disparity arguments between the Youth Court and Crown Court. Consequently, had the Judge sentenced Swainson to a custodial sentence, any appeal on a disparity point would have been likely to fail.

Further, one might ask whether the Judge should merely have concerned himself with imposing the correct sentence on Swainson – undoubtedly a custodial sentence. Two wrongs don’t make a right after all.

Att-Gen’s Reference?

There is a power for the Attorney General to refer cases to the Court of Appeal if he considers that the sentence imposed is unduly lenient. See here for our explanation of Attorney-General’s references.

Euro MP Martin Callanan said: ‘Cases like this bring the whole justice system into disrepute.

‘I would hope that the Attorney General will look urgently at the dreadful inadequacy of these sentences and consider intervening.

However, the circumstances where this applies are limited. The main category of offences to which this applies is offences triable on indictment. As this was an assault, that would mean that offence of which Swainson has been convicted would have to be GBH with intent (section 18).

It appears as though this was not the offence. More likely is that the offence was section 20 (wounding). This would therefore bar an Attorney General’s reference.


A right cock up.

The Judge should have heard the disparity argument from counsel and decided that lenient treatment of D does not warrant a sentence shorter than would otherwise be imposed. He should have imposed an immediate custodial sentence and if Swainson wanted to appeal, he could (try).

The news report in the Daily Mail is here.

Image from the Daily Mail.

Disparity of sentence

Disparity of sentence is the principle whereby it is argued that one defendant should receive a less severe sentence based on a comparison with a co-defendant’s sentence. This can occur in one of two circumstances; firstly, where similar cases are sentenced differently, an secondly where different cases receive the same sentence.


Disparity does not form a separate ground of appeal and so will need to form either a part of, or the basis for, an argument that the disputed sentence is manifestly excessive or wrong in principle. Consequently,  disparity argument can be mounted when a sentence is and is not manifestly excessive.

The test

Consider whether right-thinking members of the public thought that something had gone wrong with the administration of justice, R v Fawcett and Others 1983 5 Cr App R (S) 158.


The Court of Appeal has sought to reduce the scope of disparity. Consequently, arguments which has previously seemed more likely than not to find sympathy with the court have been rejected.

Does a disparity in sentence mean a reduction?

No. When considering the appeal against the fine imposed on Balfour Beatty, imposed after convictions arising out of the Hatfield rail crash, the Lord Chief Justice said that disparity between the sentences of two defendants was not an automatic reason for reducing a sentence.