Attorney General's Reference No 37 of 2004

A firearm robbery will ordinarily require a substantial custodial sentence to deter such offending and protect those running small businesses. Sentencing is nevertheless an individual judicial exercise. A sentencer may exceptionally impose a non-custodial sentence where the offender’s mental condition at the time materially affected judgment and the court concludes that rehabilitation better serves both the offender and the public.

An appellate court should not interfere merely because the exceptional disposal departs from the usual sentencing outcome. It must respect the sentencing judge’s assessment of the competing considerations where that assessment was carefully and properly made.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a community rehabilitation order imposed for attempted robbery and possession of a firearm while committing an indictable offence.

The offender had used a working air pistol, capable of causing a fatal wound, to demand money from a post office. Nothing was taken. He had no previous convictions. Psychiatric evidence stated that he was suffering from depressive illness, complicated by alcohol dependency, at the time of the offence.

The sentencing judge regarded the case as wholly exceptional and imposed a three-year community rehabilitation order with psychiatric counselling. The central issue was whether that exceptional non-custodial disposal should be disturbed.

1. Leave to make the reference was refused. Although attempted robbery with a firearm would ordinarily attract a substantial custodial sentence, the sentencing judge was entitled to regard this as a wholly exceptional case.

2. The offender’s depressive illness at the time of the offence materially clouded his judgment. The judge had carefully considered the usual need for deterrence and protection of small businesses, but concluded that the interests of both the offender and the public were better served by a community rehabilitation order with psychiatric support.

3. The court reaffirmed that sentencing is not mechanical. The trial judge is particularly well placed to assess the weight of competing considerations and may exercise individual judgment to do justice in the circumstances. That approach was consistent with Attorney General's Reference No 4 of 1989, 90 Cr.App.R 366, and was illustrated by Attorney General's Reference No 83 of 2001 (Fidler), [2002] 1 Cr.App.R (S) 588.

4. The earlier firearm-robbery authorities established the normal custodial starting point, but did not prevent an exceptional departure. The mental abnormality considered in Duffy differed materially from the depressive illness established here.

5. The court did not decide whether post-sentence progress could generally be considered on an Attorney General’s reference. It held that the materials before the sentencing judge alone justified refusing leave. The favourable subsequent probation report provided reassurance only.

• Court of Appeal (Criminal Division) — under section 36 of the Criminal Justice Act 1988, refused leave to refer the community rehabilitation order as unduly lenient: [2004] EWCA Crim 1854.
• Sentencing judge — on 8 March 2004 imposed a three-year community rehabilitation order, with psychiatric counselling, for attempted robbery and possession of a firearm while committing an indictable offence.