Attorney General's Reference Nos 31, 45, 43, 42, 50 & 51 of 2003

On an Attorney General's reference, the Court of Appeal should intervene only where the sentence is manifestly insufficiently severe, ordinarily because an error of principle would damage public confidence. The trial judge retains a wide sentencing discretion. Sentencing guidelines guide rather than displace that discretion, but a departure should be explained.

The court may take account of an offender's subsequent progress when deciding whether to alter an unduly lenient community sentence. A suspended sentence of imprisonment requires exceptional circumstances. Ordinary mitigation, such as good character, youth and a guilty plea, will not ordinarily suffice. Exceptional circumstances are assessed in light of the statutory purpose and the facts of the individual case.

The Attorney General referred six Crown Court sentences for review under Criminal Justice Act 1988, section 36. The references concerned robbery, wounding with intent, repeated indecent assaults on a child within the offender's family, and acts tending and intended to pervert the course of public justice.

Two offenders had received community-based sentences for robbery and wounding. One offender had received a short custodial and extended sentence for indecent assaults. Two offenders had received suspended sentences for perverting the course of justice after briefly assisting, by omission and denial, two suspects following a fatal stabbing.

The central question was whether each sentence was unduly lenient and, if so, whether the court should exercise its discretion to substitute a different sentence.

1. The court granted leave in all six references. It made no order in the references concerning McInerney, McLean and the two Lehals. It quashed and increased the sentences imposed on Burgess and AC.

2. Under section 36 of the Criminal Justice Act 1988, the court should not interfere merely because it would have imposed a different sentence. Following Attorney General's Reference (No. 4 of 1989) 90 Cr. App. R. 366 and Attorney General's Reference (No. 5 of 1989) (R v Hill-Trevor) 90 Cr. App. R. 358, intervention requires an error of principle and a sentence manifestly insufficiently severe. The statutory discretion to substitute an appropriate sentence is wide.

3. The court declined to interfere with McInerney's intensive community order. Although custody would usually follow mobile-phone robbery, exceptional circumstances could include a real prospect that a meaningful community sentence would protect the public better. His positive compliance after sentence substantiated the Recorder's assessment. It also declined to alter McLean's eight-month sentence. The comparable authority was more serious, and her subsequent rehabilitation made a return to custody contrary to the public interest.

4. Burgess's community rehabilitation order for wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 was manifestly unduly lenient. The Recorder wrongly sentenced on the basis that section 20 better reflected the criminality despite the jury's verdict. The appropriate sentence was three and a half years' imprisonment, reduced to two and a half years for double jeopardy. The court also stated that the Recorder had wrongly imposed no separate penalty for a distinct section 20 offence, though it did not alter that order.

5. AC's nine-month custodial terms for repeated indecent assaults on his young stepdaughter were unduly lenient. The judge had given excessive weight to the child's wish that he not be imprisoned, to the effect on the offender's wife, and to the fact that offending had ceased after the child disclosed it. Concurrent terms of two years' imprisonment were substituted, with four-year extended sentences on the later counts. The extension period was justified, but the sentencing court had no power to impose a programme condition on the licence.

6. The Lehal sentences were lawful and within the judge's discretion. Section 118(4)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 requires exceptional circumstances before imprisonment may be suspended. Time spent in custody on more serious charges later withdrawn, for which no credit would be available, was capable of providing those circumstances.

• Court of Appeal (Criminal Division): reviewed six Crown Court sentences on Attorney General's references under section 36 of the Criminal Justice Act 1988. It increased the sentences of Burgess and AC, and made no order on the remaining references.
• Crown Court: the underlying sentences were imposed at Liverpool, Manchester, Derby and Maidstone Crown Courts, and by a Recorder in McInerney's case. No lower-court citations were stated.