Attorney General's Reference No 98 of 2004

Sentencing for a violent group robbery must reflect the vulnerability of a lone victim, the use of shod feet, violence beyond that needed to steal, and any further gratuitous assault after the robbery. Youth and a prompt guilty plea remain material mitigation, but do not prevent a substantial detention sentence where those aggravating features are present. On a reference under section 36 of the Criminal Justice Act 1988, where the original sentence is unduly lenient, the Court of Appeal may quash it and substitute the proper sentence while allowing for the offender’s double jeopardy.

The offender, aged 17 when the offences were committed, pleaded guilty at the first opportunity to robbery and assault occasioning actual bodily harm. He and other youths attacked a lone man at night, stole his property, and the offender later returned to kick and stamp on the victim.

At Manchester Crown Court, the Recorder imposed 30 months’ detention in a young offender institution for robbery and 12 months’ concurrent detention for assault. The Attorney-General referred the sentences under section 36 of the Criminal Justice Act 1988, contending that they were unduly lenient.

1. The reference was allowed. The Court granted leave under section 36 of the Criminal Justice Act 1988 and held that the 30-month robbery sentence was unduly lenient.

2. The robbery involved serious aggravating features. Four youths approached a lone victim at night. Shod feet were used as weapons. The violence exceeded that required to commit the robbery, and the offender then returned to inflict further wholly gratuitous violence. Although one member of the group did not participate in the violence and another sought to reduce it, the offender played the principal part.

3. The Court gave weight to the offender’s age and his guilty pleas at the first opportunity. It also noted that the CCTV evidence made a successful contest of guilt virtually impossible. The absence of a conventional weapon provided little mitigation in the circumstances.

4. The Court treated the sentencing guidance in Attorney-General’s References No 4 and 7 of 2002 (R v Lobban & Ors) [2002] 2 Cr App R(S) 345 as relevant, including the importance of a team of offenders and the applicable sentencing range. A sentence of at least five years’ detention in a young offender institution was appropriate for the totality of this criminality.

5. Allowing for double jeopardy because the offender was being sentenced again, the Court quashed the 30-month sentence on the robbery count and substituted four years’ detention in a young offender institution. The concurrent 12-month sentence for assault occasioning actual bodily harm remained undisturbed.

• Court of Appeal (Criminal Division): On the Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, granted leave, held the robbery sentence unduly lenient, and substituted four years’ detention in a young offender institution ([2004] EWCA Crim 2769).
• Manchester Crown Court: On 5 July 2004, imposed 30 months’ detention in a young offender institution for robbery and 12 months’ concurrent detention for assault occasioning actual bodily harm.