Attorney General Reference Nos 57 & 58 of 2004

An aggravated burglary involving a premeditated group attack in the victim’s home, a weapon, repeated violence, serious injury, damage and profound harm to the victim requires a sentence that properly reflects its exceptional gravity. A leading adult offender and a younger offender acting under that influence may properly receive materially different terms, but youth and lack of previous custody do not prevent a substantial custodial sentence.

On an Attorney General reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient where it fails adequately to reflect that seriousness. When substituting a higher term, the court must allow for double jeopardy because the offender is being sentenced again.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient sentences imposed at Derby Crown Court on Thomas Barrow and his 17-year-old son, Daniel Barrow.

Both had been convicted of aggravated burglary after entering the victim’s home in the early hours and inflicting a sustained, armed assault. Daniel Barrow was also convicted of criminal damage. The victim suffered serious facial injuries, including a badly broken nose, and was compelled to move from his home.

The Crown Court imposed four years’ imprisonment on the father and two years’ detention in a young offender institution on the son, with five-year anti-social behaviour orders. The central issue was whether those terms were unduly lenient and, if so, what substituted sentences were appropriate.

1. The court granted leave and allowed both Attorney General’s references. The original custodial sentences were unduly lenient.

2. The aggravating features made the aggravated burglary exceptionally serious. The offenders carried out a premeditated attack on a man in his own home at 5.30 am. The son used a baseball bat, while the father repeatedly punched and kicked the victim. The attack caused grave facial injury, included gratuitous property damage, involved more than one offender, and had a profound and lasting effect on the victim.

3. The court took account of the mitigating matters advanced for the son: his youth, absence of previous custody, and his father’s influence. It also accepted that the father’s conduct caused the more serious injuries. Those matters did not justify the low original terms. Having regard to the sentencing comparison in Attorney General’s Reference Nos 43 and 44 of 2002 (Broughton and Gadd) [2003] 1 Cr App R (S) 364 and to all the submissions, the court held that the father required at least eight years’ imprisonment in the Crown Court and the son at least four years’ detention.

4. Applying the double-jeopardy allowance required when increasing a sentence on an Attorney General reference, the court substituted seven years’ imprisonment for the father’s four-year term and three and a half years’ detention in a young offender institution for the son’s two-year term.

5. The five-year anti-social behaviour orders were also quashed and replaced by three-year orders, each commencing on the offender’s release from custody.

• Court of Appeal (Criminal Division): Granted leave under section 36 of the Criminal Justice Act 1988 and increased the custodial sentences, while reducing the duration of the anti-social behaviour orders.
• Derby Crown Court: Following convictions for aggravated burglary, sentenced the father to four years’ imprisonment and the son to two years’ detention in a young offender institution; imposed five-year anti-social behaviour orders.