Attorney General's Reference No 96 of 2004

Serious robbery in a public place calls for a robust custodial response. Where the offence involves a weapon or threats of a weapon, group offending, excessive violence, lasting injury and relevant previous convictions, a sentence at the upper end of the usual range may be appropriate unless there is exceptional mitigation.

On an Attorney General’s reference, the court must first decide whether the sentence is unduly lenient. If it is, the substituted sentence must still reflect the sentencing judge’s proper allowance for mitigation, the offender’s circumstances and double jeopardy. References should not ordinarily be brought merely because the dispute concerns the extent of mitigation from a correctly identified starting range.

The offender pleaded guilty at Manchester Crown Court to robbery, unlawfully inflicting grievous bodily harm and assault occasioning actual bodily harm. He and another man had attacked three strangers in a park at night. During the robbery, the offender used or threatened a weapon, threatened that he had a gun, and caused permanent injury to one victim’s hand.

The Recorder imposed concurrent sentences totalling three years’ imprisonment. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the reduction from an appropriate starting sentence, for mitigation and guilty pleas, made the total sentence unduly lenient and, if so, what increase was justified.

1. Leave was granted and the reference allowed. The three-year sentence for robbery was unduly lenient. It was quashed and replaced by a sentence of three years and nine months’ imprisonment. The concurrent two-year sentences on the other counts remained unchanged.

2. The offending was exceptionally serious for public-place robbery. It involved excessive and gratuitous violence, permanent injury, a weapon or snooker cue, threats of a gun, two offenders, more than one victim, targeting of a mobile telephone, night-time offending in a public park, and relevant previous robberies. Those features justified a starting point of five years’ imprisonment absent exceptional mitigation.

3. The court accepted that the offender’s guilty pleas, youth and genuine remorse were mitigating. It also accepted that the sentencing judge was entitled to hesitate before making a 21-year-old a long-term prisoner. Nevertheless, the mitigation did not justify reducing the appropriate sentence to three years. The psychiatric material gave no firm basis for confidence that the risk of further impulsive violence would be controlled.

4. In fixing the substituted sentence, the court took account of the offender’s encouraging prison conduct and the usual double-jeopardy consideration. Those matters justified a limited rather than substantial increase.

5. The court added guidance for future references. A reference is not ordinarily suitable where the sentencing judge recognised the correct starting point and the real dispute is only whether too much credit was allowed for mitigation. There should be an obvious and substantial departure from good sentencing practice, peculiar local outrage, or another special consideration.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted and the robbery sentence was increased from three years to three years and nine months.
• Manchester Crown Court: The Recorder imposed concurrent sentences totalling three years’ imprisonment following guilty pleas to robbery, unlawfully inflicting grievous bodily harm and assault occasioning actual bodily harm.