Attorney General's Reference No 5 of 2004

A sentence for wounding with intent may be unduly lenient where the offender deliberately arms himself with, and uses, a broken bottle to make a retaliatory attack on the victim’s face. Racial abuse preceding the incident, particularly where it was not made by the victim, and strong personal mitigation may reduce sentence but do not remove the substantial aggravation of such an attack.

On an Attorney-General’s reference, the Court must give credit for the double jeopardy inherent in a second sentencing process when fixing the substituted sentence.

The offender was convicted after trial at Reading Crown Court of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. He had returned to a disturbance, armed himself with a bottle taken from a bin, broken it, and jabbed it into the victim’s face. The victim sustained ten lacerations requiring 17 stitches.

On 19 December 2003 the Crown Court imposed 30 months’ imprisonment. The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the aggravating features, notwithstanding racial abuse earlier in the incident and substantial personal mitigation, required a higher sentence.

1. The Attorney-General’s reference was allowed. The sentence of 30 months’ imprisonment was unduly lenient and was substituted with a sentence of three-and-a-half years’ imprisonment.

2. The offending had serious aggravating features. It was retaliatory; the offender deliberately obtained and smashed a bottle; and he used it to attack the victim’s face. The victim had little or no warning. The resulting lacerations were multiple and required stitches.

3. The court took account of mitigation. The offender had no previous convictions, a good work record, educational qualifications and favourable references. Racial abuse had preceded the assault. However, it had not been made by the victim. The period in which the offender believed that he might not be prosecuted was also relevant, but he had not been assured that he never would be prosecuted.

4. Having weighed those matters, the court held that the appropriate sentence in the Crown Court would have been at least four-and-a-half years’ imprisonment. It then allowed for the double jeopardy inherent in the second sentencing process under section 36 of the Criminal Justice Act 1988, fixing the substituted term at three-and-a-half years.

• Court of Appeal (Criminal Division): On an Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, held the Crown Court sentence unduly lenient and substituted three-and-a-half years’ imprisonment.
• Reading Crown Court: Following conviction for wounding with intent, imposed 30 months’ imprisonment on 19 December 2003.