Attorney General's Reference No 28 of 2004

A sentence for deliberate, repeated wounding with a broken bottle to an innocent victim’s face and head may be unduly lenient where personal mitigation is allowed to outweigh the exceptional gravity of the violence, the lasting disfigurement caused, and the need for deterrence. In an Attorney General’s reference, the court must also allow for the double-jeopardy element inherent in resentencing. That consideration may justify a substituted sentence below the sentence that should originally have been imposed under Powers of Criminal Courts (Sentencing) Act 2000, section 91.

The Attorney General sought leave under Criminal Justice Act 1988, section 36, to refer as unduly lenient an 18-month detention and training order imposed at Preston Crown Court.

The offender, aged 17 when the offence was committed, pleaded guilty to wounding with intent after additional forensic evidence was served. Outside a nightclub, he repeatedly struck an innocent victim in the face with a broken bottle. The victim suffered serious wounds, permanent and disfiguring scars, and lasting psychological effects.

The central issue was whether the sentencing judge had given excessive weight to the offender’s youth and difficult background, and whether the sentence should be replaced by detention under section 91.

The Attorney General’s reference was allowed. The court granted leave and held that the 18-month detention and training order was unduly lenient.

1. The Vice President, delivering the court’s judgment, held that the sentencing judge had been unduly influenced by the offender’s personal circumstances. Insufficient weight had been given to the gravity of repeatedly using a broken bottle against the face of an entirely innocent victim in a public street at night.

2. The relevant aggravating features included the use of a bottle as a weapon, the unprovoked attack on a stranger, the victim’s attempt to prevent violence, the repeated blows after the bottle broke, the lasting disfigurement, the offender’s limited early remorse, the prevalence of late-night town-centre violence, and his substantial offending record. The offender’s youth, eventual guilty plea, difficult upbringing, later remorse and progress in custody were material mitigation, but did not justify the sentence imposed.

3. The court considered that, even allowing for the guilty plea and all other circumstances, a sentence of four years’ detention under Powers of Criminal Courts (Sentencing) Act 2000, section 91 should have been imposed below. It then gave effect to the double-jeopardy element inherent in an Attorney General’s reference. In substitution for the detention and training order, it imposed three years’ detention under section 91.

• Court of Appeal (Criminal Division): granted leave under Criminal Justice Act 1988, section 36 and allowed the Attorney General’s reference: [2004] EWCA Crim 1440.
• Preston Crown Court: on 11 February 2004 imposed an 18-month detention and training order for wounding with intent. That sentence was held unduly lenient and was replaced.