Attorney General's Reference No 40 of 2004

For a premeditated retaliatory wounding committed with a weapon and causing serious injury, a post-trial starting point of five years’ imprisonment may be appropriate. That guidance is not mechanistic. Sentencing judges must tailor it to the individual case and may take a merciful course where substantial mitigation, including previous good character, low risk of reoffending, a guilty plea and significant provocation, justifies it.

On an Attorney General’s reference, a sentence may be plainly lenient without being so unduly lenient as to require appellate intervention. The further reduction ordinarily made for double jeopardy is also material when considering whether to increase sentence.

The offender pleaded guilty to wounding with intent to cause grievous bodily harm after buying a felling axe during an escalating confrontation with two intoxicated and provocative men. He used the axe to strike the victim in the face, causing severe soft-tissue injury and permanent facial impairment.

On 9 March 2004 the sentencing court imposed two years’ imprisonment. The Attorney General sought leave to refer that sentence under section 36 of the Criminal Justice Act 1988, contending that it was unduly lenient. The central issue was whether the severity and premeditation of the attack required the Court of Appeal to interfere despite the offender’s mitigation and the provocation he had received.

1. The court granted leave to make the reference but refused the application to increase the sentence. The two-year sentence was merciful and lenient, but it was not unduly lenient so as to justify intervention.

2. The appropriate post-trial starting point for an intentional, premeditated and retaliatory wounding of this seriousness was five years’ imprisonment. The offender had deliberately obtained an axe, persisted despite his girlfriend’s pleas, and inflicted a horrific facial injury with permanent consequences.

3. Nevertheless, the sentencing judge was entitled to give substantial weight to the offender’s previous good character, the exceptional nature of the offence, the favourable assessment of his risk of reoffending, his guilty plea, and the marked provocation by the victim and his half-brother. Material concerning his good behaviour in prison reinforced that assessment.

4. Sentencing guidance from the Court of Appeal supplies a general benchmark. It must be tailored to the particular case and does not prevent a judge from taking a merciful course where the circumstances justify it. In assessing whether to interfere on a reference under the Criminal Justice Act 1988, the court also had regard to the further reduction that would be required to reflect double jeopardy.

This was an Attorney General’s reference from a sentence of two years’ imprisonment imposed on 9 March 2004. The lower court and any citation for its sentencing decision are not stated in the judgment.

• Court of Appeal (Criminal Division): in [2004] EWCA Crim 2112, granted leave for the reference under section 36 of the Criminal Justice Act 1988 but refused to increase the sentence.