Attorney General's Reference No 82 of 2004

On an Attorney-General’s reference, a sentence may remain undisturbed even if it is capable of being characterised as unduly lenient. The court must exercise its discretion in light of all the circumstances. Relevant considerations include the double jeopardy inherent in a second sentencing process and an offender’s constructive progress in custody.

The offender pleaded guilty to the manslaughter of his six-week-old daughter after severely shaking her when she would not settle. He was sentenced at Liverpool Crown Court on 27 May 2004 to three years’ imprisonment.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the sentence should be increased.

1. The court granted leave for the reference but did not interfere with the three-year sentence.

2. The offence involved grave violence to a vulnerable infant. Aggravating features included the offender’s loss of temper and his prolonged failure to admit responsibility. Mitigation included his eventual guilty plea, good character, remorse, caring behaviour towards children, lack of sleep before the isolated incident, and the low assessed risk of repetition.

3. A sentence of three years was lenient. Taking all the circumstances into account, the court would have expected a sentence in the Crown Court of about three and a half to four years’ imprisonment. It nevertheless doubted whether the sentence could properly be described as unduly lenient.

4. Even if the sentence met that threshold, the court would not exercise its discretion to increase it. The offender’s constructive progress in prison was relevant. More importantly, a second sentencing process under section 36 of the Criminal Justice Act 1988 carries an inherent double-jeopardy element, requiring a discount when fixing any substituted sentence.

• Court of Appeal (Criminal Division): the Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988. Leave was granted, but the court declined to increase the sentence.
• Liverpool Crown Court: Morland J sentenced the offender on 27 May 2004 to three years’ imprisonment following his guilty plea to manslaughter.