Attorney General Reference No 95 of 2004

Sentencing for violence within a domestic relationship requires an assessment of all the facts. Good character and public service may properly mitigate sentence in that context. They are not excluded merely because the misconduct was private or domestic. Nor is there a categorical distinction between physical violence and violence to property when evaluating the circumstances of an assault.

A sentence may be lenient without being unduly lenient. Where the sentencing judge has assessed culpability from the evidence and the sentence remains within the proper ambit of judicial discretion, an Attorney-General’s reference should not succeed.

The Solicitor-General sought leave, under section 36 of the Criminal Justice Act 1988, to refer as unduly lenient a total community punishment order of 80 hours imposed by Henriques J at Leeds Crown Court.

After a seven-day trial, the offender was convicted of two assaults occasioning actual bodily harm and one indecent assault against his former partner. The offences occurred over several years. The sentencing judge found that the relationship had been volatile, that aggression had occurred on both sides, and that the three counts represented the totality of the offender’s misconduct towards the complainant.

The central issue was whether the community sentence was unduly lenient and whether immediate custody was required.

Disposition

1. The court refused leave to refer the sentence. Although the sentence was lenient, it was not unduly lenient and was well within the sentencing judge’s discretion.

2. The court rejected the submission that, in cases of private misconduct within a domestic relationship, public service and conspicuous good character could not mitigate sentence. Applying the established approach in Attorney-General's Reference No 98 of 2002 [2003] EWCA Crim 1018, such matters remain capable of proper reflection in sentencing. The seriousness of the offence affects the available weight: the observation in R v Millberry & Ors [2003] 2 Cr App R(S) 142 concerning rape did not make these comparatively minor offences serious offences.

3. The court also rejected a proposed dividing line between physical violence and conduct such as violence to property. Sentence must be assessed by reference to the whole factual context. Thus, the complainant’s unprovoked destruction of property immediately before the first assault was a relevant circumstance, though not an answer to the offence.

4. Henriques J had heard the evidence over seven days and was particularly well placed to assess culpability. The convictions represented the totality of misconduct over a lengthy period; the relationship involved bilateral aggression; the complainant’s evidence contained a material contradiction; and the offender had been acquitted of the more serious allegations. Those findings, together with the mitigating features, justified the conclusion that a community punishment order was within the proper sentencing range.

• Court of Appeal (Criminal Division): In Attorney General Reference No 95 of 2004 [2004] EWCA Crim 3028, the court refused leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.

• Leeds Crown Court: Following a seven-day trial before Henriques J, the offender was convicted of two assaults occasioning actual bodily harm and one indecent assault. On 25 June 2004, he received community punishment orders totalling 80 hours.