Attorney General Reference No 32 of 2004

On an Attorney-General’s reference for an unduly lenient sentence, the word “case” in sections 35(3) and 36(1) of the Criminal Justice Act 1988 permits the Court of Appeal to review and quash any sentence passed in the relevant Crown Court proceedings. That power extends to a concurrent sentence for an offence not triable only on indictment.

The Court has the full sentencing powers available to the Crown Court. It may therefore exercise the power under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 although the sentencing judge did not do so. A sentence for deliberate bottle wounding which fails to reflect serious aggravating features, including violent antecedents and offending on licence, may be unduly lenient.

The Attorney General referred the offender’s Crown Court sentences under section 36 of the Criminal Justice Act 1988. At Peterborough Crown Court, the Recorder imposed two years’ detention in a young offender institution for wounding with intent and a concurrent 12 months for an unrelated affray.

The wounding involved the offender deliberately breaking a beer bottle and striking the victim in the neck. He had recently been released from a sentence for unlawful wounding and committed both offences while on licence. The Recorder did not order service of any part of the unexpired earlier sentence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.

The central issues were whether the sentences were unduly lenient and whether the Court could alter the affray sentence and exercise the section 116 power on this reference.

1. The reference was allowed and the sentences were increased. The Court held that the two-year sentence for wounding with intent was unduly lenient. The offender deliberately broke a bottle before using it as a weapon against the victim’s neck. The offence was aggravated by his violent record, his recent release from custody and his offending while on licence. A starting point of two and a half years was conspicuously too low in light of the sentencing authorities.

2. Sections 35(3) and 36(1) of the Criminal Justice Act 1988 were broadly expressed by reference to the “case”. Once the reference concerned proceedings to which that Part applied, section 36(1) empowered the Court to quash any sentence imposed in those proceedings and replace it with a sentence which the Crown Court could have imposed. The Court could therefore alter the concurrent sentence for affray, although affray was not triable only on indictment.

3. Section 36(1) also gave the Court all sentencing powers vested in a Crown Court judge. The Recorder’s failure to exercise the power under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 did not prevent the Court from requiring service of part of the unexpired earlier sentence.

4. Absent the special discounts required on an Attorney-General’s reference, the section 18 offence warranted at least three and a half years’ detention, with a significant consecutive term for the affray and service of substantially all of the unexpired sentence. Allowance was made for double jeopardy and for the offender’s need to return to custody after release. The Court imposed two years’ detention for wounding with intent, 12 months consecutively for affray, and nine months for the unexpired earlier sentence: a total of three years and nine months. The offender was ordered to surrender at a Huntingdon police station by noon on the following Monday.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the Court granted leave, quashed the Recorder’s sentencing orders and imposed a total of three years and nine months’ detention. [2004] EWCA Crim 2644

• Crown Court: The Recorder at Peterborough Crown Court imposed two years’ detention for wounding with intent and a concurrent 12 months for affray, without exercising the section 116 power under the Powers of Criminal Courts (Sentencing) Act 2000.