Attorney General's Reference No 19 of 2004

A judicial indication of sentence does not prevent the Attorney General from seeking review of an unduly lenient sentence. The indication remains material when the court decides whether and how to intervene. Intervention may be inappropriate where the prosecution itself helped create an expectation on which the offender acted to their detriment. That question depends on the facts.

For racially aggravated violence, sentencing should identify the proper sentence for the underlying offence and then add a distinct, transparent uplift for racial aggravation. The uplift must reflect both the racist conduct and its effect on those present. Serious knife violence with racial abuse requires a significant custodial sentence.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a ten-month sentence for racially aggravated unlawful wounding. The offender had used a knife to inflict a substantial wound to the neck of a 16-year-old after racist abuse.

Before the guilty plea, the sentencing judge had indicated in chambers that a plea to simple wounding would permit immediate release and continuation of a Drug Treatment and Testing Order. When the prosecution accepted a plea to racially aggravated wounding, the judge said that the racial aggravation would not alter that indication. The Attorney General's reference raised whether prosecuting counsel had acquiesced so as to make intervention inappropriate, and whether the resulting sentence was unduly lenient.

1. Leave to refer was granted and the sentence was increased. The court substituted three years’ imprisonment, comprising two years for the wounding and one year for racial aggravation. Under paragraph 10 of Schedule 3 to the Criminal Justice Act 1988, the substituted sentence ran from the date of the reference and therefore concurrently with the three-year burglary sentence already being served.

2. A sentencing indication does not preclude an Attorney General’s reference. Attorney General's Reference No 4 of 1996 (Robinson) [1997] 1 Cr.App.R (S) 357 and Attorney General's Reference No 17 of 1998 (Stokes) [1999] 1 Cr.App.R (S) 407 established that an offender who pleads guilty following a lenient indication remains subject to the statutory risk of review. The indication is nevertheless important when the court determines disposal.

3. Intervention may be inappropriate if the prosecution contributed to the offender’s sentencing expectation and the offender acted to their detriment. The principle discussed in Attorney General's Reference Nos 8, 9 and 10 of 2002 (Mohammed and others) [2003] 1 Cr.App.R (S) 272 did not apply. The prosecution had not helped create the indication. Counsel was confronted by the judge’s firm, unprompted view and could not withdraw the acceptable plea.

4. Racially aggravated violence must be punished severely. Following R v Saunders [2000] 2 Cr.App.R (S) 71 and Kelly and Donnelly [2001] 2 Cr.App.R (S) 73, the court should first identify the sentence for the violence without racial aggravation, then add a separate and transparent increment for that aggravation.

5. Here, the knife wound was substantial, inflicted on a vulnerable part of the body, and the offender had a serious record. The racist abuse was clear and occurred in the presence of other black youths. Double jeopardy, the guilty plea, and reliance on the indication justified a lower term than would otherwise have been appropriate, but could not justify the original ten-month sentence.

• Court of Appeal (Criminal Division) Granted the Attorney General leave under section 36 of the Criminal Justice Act 1988 and substituted a three-year sentence for the ten-month sentence for racially aggravated wounding.

• Sentencing proceedings On 22 January 2004, the judge imposed ten months’ imprisonment for racially aggravated wounding and re-imposed a Drug Treatment and Testing Order for an earlier burglary. On 20 February 2004, after that order proved inappropriate, the judge imposed three years’ imprisonment for the burglary.