Attorney General's Reference No 92 of 2004

Sentences for a grave aggravated burglary and a later conspiracy to pervert the course of justice must reflect the full seriousness of both offences. Where the conspiracy is a serious attempt to prevent the prosecution of the principal offence, a concurrent sentence may produce an unduly lenient total. A consecutive sentence may be required, particularly where the offending was committed during a licence period and involved grave violence, threats, lasting harm to victims and a deliberate attempt to evade justice.

On an Attorney General reference, the court may substitute a higher total sentence while taking account of double jeopardy and material changes affecting any unexpired licence period.

The offender pleaded guilty at Mold Crown Court to aggravated burglary and conspiracy to pervert the course of justice. He and an accomplice entered the victims’ home at night, used threats and violence to obtain property, and caused injuries and enduring psychological harm. Shortly before trial, while the offender was in custody, arrangements were made to pay the male victim to withdraw or alter his evidence.

The judge imposed six years’ imprisonment for aggravated burglary and two years’ imprisonment for the conspiracy, to run concurrently. No order was made concerning the unexpired portion of an earlier sentence from which the offender had been released on licence. The Attorney General obtained leave under Criminal Justice Act 1988, section 36, to refer the sentences as unduly lenient.

The central issue was whether the concurrent total properly reflected the seriousness of the offending.

1. The reference was allowed. The total sentence of six years was unduly lenient. The aggravated burglary involved a planned night-time intrusion into an occupied home, threats with a knife and a piece of wood containing a nail, injuries, and serious and lasting effects on both victims. It was committed while the offender was on licence.

2. The later conspiracy to pervert the course of justice materially aggravated the overall criminality. It was a serious attempt to procure the principal victim’s withdrawal or alteration of evidence in return for money. Although the two-year sentence for that offence was not treated as inadequate in itself, it should have been consecutive to the sentence for aggravated burglary rather than concurrent with it.

3. The court stated that the Crown Court should first have required service of the unexpired licence period. It should then have imposed six or seven years for aggravated burglary, consecutive to that period, and a further consecutive two years for the conspiracy.

4. By the time of the reference, the position concerning the unexpired licence period had materially changed and no sensible order concerning it could be made. Giving credit for double jeopardy, the court substituted a total sentence of seven years and six months’ imprisonment: six years for aggravated burglary and eighteen months’ imprisonment for conspiracy to pervert the course of justice, consecutive to the first sentence.

• Court of Appeal (Criminal Division): On an Attorney General reference under section 36 of the Criminal Justice Act 1988, the court held the total sentence unduly lenient and substituted seven years and six months’ imprisonment.
• Mold Crown Court: His Honour Judge Daniel imposed six years’ imprisonment for aggravated burglary and two years’ imprisonment for conspiracy to pervert the course of justice, concurrently.