A JUDGE blasted the decision not to charge a drunken yob who stamped on a man’s head with actual bodily harm.

Gethin Smith admitted affray after punching victim Russell Osmond to the ground, then kicking him while he lay motionless and stamping on his head.

Sentencing Smith, 21, of The Rosary, Wootton Bassett, and his neighbour Nathan Douglas, 19, who also took part in the fight, Judge Douglas Field said he could not understand why they had not faced more serious charges.

Judge Field quizzed prosecutors at Swindon Crown Court. “Why are these two charged with affray, which has a maximum sentence of three years rather than actual bodily harm which carries a maximum of five years?” he said.

“My understanding is in circumstances where there are a large number of people involved, and it is difficult to decide who did what to whom, it is affray. The circumstances in this case, I suspect the proper charge was actual bodily harm, but they have been charged with affray, they have pleaded guilty to affray and we have to accept that. “ Claire Marlow, prosecuting, told the court that Russell Osmond, Matthew Hacker and friends were walking home from a night out in Wootton Bassett, on May 4, when Smith and Douglas launched their attack.

“Mr Hacker recalls them coming towards them, then recalls being pushed or punched to the floor,” she said.

“He was curled up on the floor and they were kicking his head.”

Ms Marlow said witness Gemma Barrett saw Smith stamp on Mr Osmond’s head as he lay on the ground “quite a lot of times.”

Rob Ross, defending Smith, said: “It is quite clear that the injury was caused by kicking him in the front of his face.

“My client caused that injury. My client accepts he has been lucky to be charged with affray.

“Any incident like this is an affront to all of us and the reason many people don’t walk around at night is because of fear of things like this.”

Mike Poulsford, defending Douglas, said: “Nathan Douglas makes it clear he does not accept he took part in any kicking or stamping and did not instigate the violence that took place that night.”

Sentencing Douglas to a 12 month community order, with an order to attend a rehabilitation course, and Smith to a 36 week suspended sentence, Judge Field said: “On this evening last May you were involved in an unwarranted attack.

“Someone in the close vicinity must have felt very intimidated. The courts take a serious view to this sort of disorder.”

Smith was also ordered to pay £250 compensation to his victim and complete 200 hours unpaid work.