Attorney General's Reference No 25 of 2004

On an Attorney-General reference, a sentence may be unduly lenient without requiring an increase. The court must consider the public interest and the offender’s interests at the date of the reference. Material considerations may include substantial compliance with a community order, the disruption caused by replacing an originally non-custodial sentence with custody, and the double-jeopardy element of resentencing.

Sentencing is an art rather than a science. An appellate court should not lightly interfere where the sentencing judge had a proper basis for an exceptional degree of leniency, including genuinely out-of-character conduct and reliable psychiatric evidence bearing on future risk.

The offender pleaded guilty at Lincoln Crown Court to false imprisonment. He had returned to his landlady’s home three days after being granted bail on conditions not to enter the area or contact her. He locked her in the house, threatened her with knives, and at one stage held a knife to her throat. The victim escaped through an upstairs window.

On 6 February 2004, the Crown Court imposed a 100-hour community punishment order and a two-year community rehabilitation order. The Attorney-General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the Court of Appeal should replace the community sentence with immediate custody.

1. Leave was granted, but the sentence was not increased. The court held that, absent exceptional mitigation, this grave false-imprisonment offence would properly have attracted about three years’ imprisonment after a guilty plea. The original community sentence was therefore, at first sight, unduly lenient.

2. The offence had serious aggravating features. It was a further offence against the same victim, committed in breach of protective bail conditions and by an invasion of her home. It caused intense fear, involved knives and threats to kill, and affected the victim’s children and a vulnerable lodger.

3. Nevertheless, the court declined to interfere. By the hearing, the offender had completed a significant part of the community punishment order. Returning him to prison after an initially non-custodial disposal would be particularly harsh, and the court had to allow for double jeopardy.

4. The sentencing judge had a proper basis for taking an exceptional course. The conduct was wholly out of character, and the psychiatric report was more important: it assessed no serious risk of similar offending or risk to the victim or women generally. Sentencing was an art, not a science, and an appellate court should not lightly interfere with leniency founded on a proper basis.

• Court of Appeal (Criminal Division): On an Attorney-General reference under section 36 of the Criminal Justice Act 1988, the court granted leave but declined to interfere with the sentence: [2004] EWCA Crim 1203.

• Lincoln Crown Court: On 6 February 2004, the offender received a 100-hour community punishment order and a two-year community rehabilitation order for false imprisonment.