Attorney General Reference No 77 of 2004

A finding that a sentence is unduly lenient does not require the court to increase it on an Attorney General’s reference under Criminal Justice Act 1988, section 36. The court must exercise its discretion by considering whether an increased sentence would serve the public interest.

That assessment may require allowances for double jeopardy, for the offender having already complied substantially with a non-custodial sentence, and for the practical consequences of later custody. Where those matters would reduce an otherwise appropriate custodial term to a short sentence, the court may decline to interfere despite the original sentence being entirely inappropriate.

The offender pleaded guilty, on the day fixed for trial, to causing grievous bodily harm with intent, affray and criminal damage. During disorder outside a public house, he punched a man who fell and then ran towards him and kicked him once in the head. The victim sustained jaw fractures requiring surgery and deep lacerations.

At Minshull Street Crown Court, the offender received concurrent community rehabilitation orders, a six-month curfew and compensation. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentences as unduly lenient. The issue was whether the Court of Appeal should replace an unduly lenient non-custodial sentence with custody after the offender had substantially complied with it.

1. Leave was granted and the sentence was held to be unduly lenient. A community-based sentence did not adequately reflect the seriousness of causing grievous bodily harm with intent by kicking a defenceless person in the head. The aggravating features were the victim’s defenceless position, the offender running up to administer a shod-foot kick, and a previous conviction for violence. The late guilty plea, the basis that the offender was seeking to assist a friend, and his youth did not prevent that conclusion.

2. The court considered that the appropriate sentence at first instance would have been about three years’ detention in a young offender institution. That assessment reflected the gravity of a head kick to a person on the ground and the late stage of the plea.

3. The court nevertheless declined to interfere. In an Attorney General’s reference, double jeopardy requires a reduction from the sentence otherwise appropriate because the offender is being sentenced a second time. A further reduction was required where the offender had not previously been deprived of liberty for the offence, had completed five months of a six-month curfew, and had paid much of the compensation.

4. Those reductions would have produced only a comparatively short custodial term. Custody would also cause the offender to lose his job and impair his ability to compensate the victim. The public interest would not be served by imposing such a short sentence at that stage. The court therefore exercised its discretion not to alter the sentence.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave and held the sentence unduly lenient, but declined to vary it: [2004] EWCA Crim 2464.

• Minshull Street Crown Court: The offender received concurrent two-year community rehabilitation orders, a six-month curfew and an order to pay £1,000 compensation.