Attorney General's Reference No 30 of 2004

A sentence for wounding with intent may be unduly lenient where it fails adequately to reflect a savage, unprovoked and repeated weapon attack on an innocent victim which causes grave and enduring head injuries. A guilty plea, remorse and evidence of rehabilitation may substantially mitigate sentence, but they must be weighed against the seriousness of the violence and its lasting consequences.

Where the Court of Appeal increases a sentence on an Attorney General’s reference, it must make an allowance for the offender’s double jeopardy in undergoing sentencing twice through no fault of his own.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence of three years’ imprisonment imposed at Taunton Crown Court for wounding with intent.

The offender had struck an unacquainted victim repeatedly with a hammer following a trivial disagreement over a jukebox. The victim sustained a depressed skull fracture, required surgery, and suffered continuing physical, psychological and economic consequences. Although the offender pleaded guilty on the day of trial, expressed remorse and had made efforts to reform, the Attorney General contended that the sentence did not reflect the gravity of the offence.

The central issue was whether the sentence was unduly lenient and, if so, what substituted sentence was just.

1. The court granted leave and held that the sentence of three years’ imprisonment was unduly lenient. It quashed that sentence and substituted four years and six months’ imprisonment.

2. Per Lord Justice Kay, giving the judgment of the court, the attack was exceptionally serious. It was unprovoked, committed against an innocent stranger, involved repeated and forceful blows to the head with a hammer, and continued when the offender attempted to throw an ashtray after others intervened. The offender had left the premises after the trivial exchange and returned before carrying out the attack. Those features materially aggravated the offence (paras [27]–[28]).

3. The victim’s depressed skull fracture, surgery and continuing symptoms demonstrated serious and potentially long-term harm. The late guilty plea, remorse, voluntary surrender, difficult history and efforts at rehabilitation were mitigating features. They did not, however, justify the sentence imposed in light of the gravity of the violence and its consequences (paras [21], [27]–[29]).

4. The court considered that, even allowing for the guilty plea entered on the day of trial, the proper sentencing range was five years and six months to six years. It then made the customary allowance for double jeopardy because the offender had undergone the sentencing process twice through no fault of his own. That allowance produced the substituted term of four years and six months (paras [29]–[31]).

• Court of Appeal (Criminal Division): Granted leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, quashed the three-year term and substituted four years and six months’ imprisonment: [2004] EWCA Crim 1754.
• Taunton Crown Court: On 13 February 2004, His Honour Judge O’Malley sentenced the offender to three years’ imprisonment for wounding with intent.