Attorney General Reference No 80 of 2004

On an Attorney General’s reference, the court must first decide whether the sentence was unduly lenient. It must then exercise its statutory discretion as to whether to interfere. A sentence may be unduly lenient because it fails to reflect the gravity of child-cruelty offences, yet remain unaltered where the interests of children and the public do not require immediate imprisonment.

In exercising that discretion, the court must give weight to the offender’s being sentenced again, prior liberty, and the practical consequences of custody. A realistic prospect that dependent children will shortly be rehabilitated with their parents may justify declining to substitute a custodial sentence.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient two conditional discharges imposed at Snaresbrook Crown Court.

The offender had pleaded guilty to two offences of child cruelty contrary to section 1(1) of the Children and Young Person's Act 1933. The offences concerned assaults on her 11-year-old son and permitting him to leave the family home after further violence, without raising the alarm until later.

The central issue was whether the conditional discharges were unduly lenient and, if so, whether the Court of Appeal should exercise its discretion to impose a custodial sentence despite the possible effect on the planned rehabilitation of the offender’s two younger children with their parents.

1. Leave was granted and the conditional discharges were held to be unduly lenient. The offences involved repeated violence against a vulnerable child who had recently joined the offender in the United Kingdom. The assaults caused visible injuries, and the abandonment incident left him distressed, wet and inadequately dressed. Even on the written basis of plea, the gravity of the two offences required custody rather than a conditional discharge.

2. The court considered that a sentence of about 18 months’ imprisonment would have been anticipated at first instance. The pleas of guilty and the agreed factual basis did not remove the custodial character of the offending.

3. The court nevertheless declined to alter the sentence. Under section 36 of the Criminal Justice Act 1988, a finding that a sentence is unduly lenient does not compel substitution of a heavier sentence. The court had to exercise its discretion in light of double jeopardy, since the offender was being sentenced a second time, and her previous liberty.

4. The decisive practical consideration was the high probability that the offender’s two younger children would shortly be reunited with their parents if contact and assessment arrangements continued successfully. Immediate imprisonment would disrupt that prospect. On the information before the court, neither the children’s interests nor the public interest required that disruption.

5. Accordingly, the court formally declared the sentence unduly lenient but made no custodial substitution and did not interfere with the conditional discharges.

• Court of Appeal (Criminal Division): The Attorney General’s reference under section 36 of the Criminal Justice Act 1988 was entertained. The court held the Crown Court sentence unduly lenient but declined to vary it.
• Crown Court: At Snaresbrook Crown Court, the offender pleaded guilty to two child-cruelty offences and received conditional discharges for two years on each count.