Attorney General Reference No 21 & 22 of 2004

Robbery committed by a gang against vulnerable users of public transport ordinarily calls for a deterrent custodial sentence. This applies to young offenders as well, although their age and culpability remain material to sentence.

On an Attorney General reference, the court must separately consider whether the original sentence was unduly lenient and whether it should exercise its discretion to alter it. Even where a non-custodial sentence is clearly lenient and probably unduly lenient, a substantial lapse of time, youth, completed compliance with the order and genuine rehabilitation may make later custody inappropriate.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed at Harrow Crown Court on Kyrron Jackson and Ashraf Ali.

Both offenders had pleaded guilty to robbery and handling offences arising from a group’s planned late-night robberies of users of public transport. Jackson received concurrent 12-month supervision orders. Ali received a two-year community rehabilitation order with intensive supervision and a six-month curfew.

The central questions were whether the sentences were unduly lenient and, if so, whether the Court of Appeal should vary them despite the time elapsed and the offenders’ subsequent circumstances.

1. The Court granted leave to make the references but made no order varying either sentence.

2. Gang robberies directed at innocent public-transport users are serious. Their planned character, the size and intimidation of the group, the vulnerability of the victims and offending while on bail were aggravating. Such offending ordinarily requires deterrent custody. Save in exceptional cases, even young offenders should expect a significant detention and training order, or longer detention where that order does not reflect the offence’s gravity and culpability.

3. The offenders’ guilty pleas, their youth, their limited roles and absence of significant violence, and periods already spent in custody were mitigating. The original non-custodial sentences were clearly lenient and probably unduly lenient, although the sentencing judge could take account of the custody already served.

4. The Court treated the decision whether to interfere as a separate discretionary question. The offences were two years old. Ali had complied fully with his order and made outstanding, evidenced progress towards rehabilitation. A custodial sentence at that stage would be retrograde and would not benefit him or the public.

5. Jackson’s later offending caused greater concern, but the Court, with hesitation, reached the same discretionary conclusion in view of his age and circumstances. Neither sentence was varied.

• Court of Appeal (Criminal Division): granted leave on the Attorney General’s references under section 36 of the Criminal Justice Act 1988, but declined to vary either sentence: [2004] EWCA Crim 3048.
• Harrow Crown Court: on 5 February 2004 imposed a 12-month supervision order on Jackson and a two-year community rehabilitation order with intensive supervision and a curfew on Ali. No citation is stated.