Attorney General's Reference No 9 of 2004

Where a violent offender makes a sustained and unprovoked attack on a vulnerable and unconscious victim, persists despite intervention, and causes permanent injury, an immediate custodial sentence is required. A suspended sentence followed by a deferral of sentence is unduly lenient in such circumstances.

On an Attorney General’s reference, double jeopardy and genuine rehabilitative efforts remain material when fixing the substituted sentence. They do not justify declining to interfere where the original sentence falls substantially below the appropriate custodial level.

The offender was indicted for assaulting a vulnerable man outside a public house. He pleaded guilty to assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861 and was convicted after trial of inflicting grievous bodily harm with intent under section 18.

The Recorder at Exeter Crown Court initially imposed a two-year suspended sentence for the section 18 offence and concurrent suspended sentences for other offences. On a later hearing under the slip rule, the Recorder deferred sentence for six months.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the suspended and deferred sentence could properly stand.

1. The court granted leave and held that the sentence for the section 18 offence was unduly lenient.

2. The attack was exceptionally serious. The offender had assaulted a vulnerable victim without provocation, rendered him unconscious, repeatedly kicked and punched him, bit his genitals, persisted despite intervention, and caused permanent damage to his eye and scarring to his penis. His extensive history of violence and offending while subject to licence further aggravated the case.

3. Neither the delay before sentence nor the offender’s attendance at aggression-treatment appointments displaced the need for immediate custody. The court considered that the Recorder should have imposed at least four years’ imprisonment for the section 18 offence. A suspended sentence and subsequent deferral were outside the proper range of sentencing options.

4. The court nevertheless took account of double jeopardy, because the offender was being sentenced again, and of his genuine efforts to improve his behaviour. Those matters justified a substantial reduction from the sentence that should originally have been imposed, but did not make non-intervention appropriate.

5. Under section 36 of the Criminal Justice Act 1988, the court substituted an immediate sentence of two years’ imprisonment for the section 18 offence. It imposed concurrent terms of 12 months’ imprisonment for the two affrays and no separate penalty for the remaining offences. The sentences were to begin when the offender surrendered to custody.

• Court of Appeal (Criminal Division): Granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, and substituted immediate custodial sentences.

• Exeter Crown Court: The Recorder imposed suspended sentences, then deferred sentence for six months following reconsideration under the slip rule.