Attorney General's Reference No 23 of 2004

A non-custodial sentence may be unduly lenient where it fails to reflect the gravity of concerted robberies and attempted robberies involving a realistic imitation firearm, used so as to make victims fear death. Youth, guilty pleas, remorse and difficult personal circumstances may justify mercy, but cannot render proportionate an exceptionally merciful sentence for such serious offending.

When replacing an unduly lenient sentence on an Attorney General's reference, the court must allow for double jeopardy, including time spent at liberty and any compliance with the original order. It must also remain within the sentencing powers available to the court below.

Fiona Fereday, then aged 17, pleaded guilty at Birmingham Crown Court to robbery, two attempted robberies and possession of an imitation firearm with intent to commit robbery. The offences were committed with two co-offenders in Birmingham city centre at night. In one incident she used the imitation firearm against a woman at a cashpoint; in the later attempted robberies, the firearm was pointed at two men.

The Crown Court imposed a two-year supervision order with intensive supervision, surveillance and a robbery programme. The Attorney General referred the sentence as unduly lenient. The central issue was whether that non-custodial sentence adequately reflected the seriousness and aggravating features of the offending.

1. The reference was allowed. The supervision order was unduly lenient. The court substituted an 18-month detention and training order.
2. The offences involved grave aggravation. They were concerted attacks at night in a city centre, using a realistic imitation firearm in a manner calculated to cause fear of death. The offender committed robbery and attempted robberies close together in time. Those features were not disputed.
3. The sentencing judge had been entitled to take account of the offender's youth, guilty pleas, personal history, remorse and apparent progress while on bail. However, those matters did not justify the exceptionally merciful non-custodial sentence imposed. Subsequent reports also showed poor compliance with the supervision order, so the court could not treat successful completion of its requirements as a reason for retaining it.
4. The appropriate sentence at the date of sentence would have been detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for about two and a half years. The court reduced that outcome for double jeopardy, taking account of the offender's time out of custody and the limited part of the order she had completed.
5. By section 36(1)(b) of the Criminal Justice Act 1988, the court could exercise only the powers available to the Crown Court. It therefore imposed an 18-month detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000. The offender was ordered to surrender at Birmingham Youth Court on 9 July 2004, and the sentence was to run from that surrender.

• Court of Appeal (Criminal Division): Granted leave for the Attorney General's reference, held the supervision order unduly lenient, and substituted an 18-month detention and training order.
• Birmingham Crown Court: Following guilty pleas to robbery, attempted robberies and an imitation-firearm offence, imposed a two-year supervision order with intensive supervision, surveillance and a robbery programme.