Griffiths, Re Reference By the Attorney General

For a serious, unprovoked wounding by biting off part of the victim’s ear, sentence must reflect the violence used, the injury, prior violent offending and offending during a community order. A late guilty plea justified no more than a year’s reduction from the appropriate sentence of four and a half years.

However, an Attorney General’s reference does not require an increase merely because the sentence is unduly lenient. In exceptional circumstances, a court may leave the sentence undisturbed where the offender relied on an unequivocal pre-plea sentencing indication given in open court, particularly where the prosecution participated in the sentencing dialogue.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed at Leicester Crown Court on Carl Weston Griffiths. Griffiths pleaded guilty, on the day fixed for trial, to unlawfully and maliciously wounding with intent under section 18 of the Offences Against the Person Act 1861. He had bitten off most of a stranger’s ear lobe in an unprovoked street attack and had a substantial record of violent offending.

The Recorder imposed two years’ detention in a young offender institution after giving a pre-plea indication. The indication initially reflected a mistaken view of the available sentencing powers, but it was later amended to two years. The issue was whether that sentence was unduly lenient and, if so, whether it should be increased.

1. Leave was granted and the sentence was held unduly lenient, but it was not increased. The court held that the lowest appropriate sentence was three and a half years’ detention in a young offender institution.

2. The section 18 offence under the Offences Against the Person Act 1861 was an unprovoked attack. The offender bit off a substantial part of the victim’s ear and also bit his rib cage. The biting was comparable to the use of a weapon. Material aggravation arose from his record for violence and the commission of the offence during a community punishment order.

3. The only substantial mitigation was the offender’s youth and his late guilty plea. A proper sentence after conviction was four and a half years. The late plea justified a reduction of no more than one year.

4. The court nevertheless exercised its discretion not to disturb the two-year sentence. This was an exceptional case: before the change of plea, the Recorder gave a clear sentencing indication in open court and the offender plainly relied upon it. The prosecution had participated in the sentencing dialogue and had stated that a sentence of no more than two years would be referred to the Attorney General. That unusual circumstance, and not merely the usual element of double jeopardy, made an increase inappropriate.

• Court of Appeal (Criminal Division): granted leave under section 36 of the Criminal Justice Act 1988, found the sentence unduly lenient, but declined to increase it.

• Leicester Crown Court: following a guilty plea, imposed two years’ detention in a young offender institution for an offence under section 18 of the Offences Against the Person Act 1861.