Attorney General's Reference No. 113 of 2004 v Under Section 36 Of

A sentence may be lenient without being unduly lenient. On an Attorney General’s reference, the appellate court must assess both the proper sentence and whether it should interfere with the sentence imposed.

In making that latter decision, the court must give weight to double jeopardy, since the offender is effectively being sentenced again. A substantial and violent domestic robbery of vulnerable victims warranted a markedly higher sentence if contested. A guilty plea, genuine remorse and relevant mitigation could substantially reduce that sentence. Here, the resulting one-year shortfall did not justify intervention.

The offender pleaded guilty at Swansea to robbery, two offences of supplying Class C drugs, and possessing a bladed article in a public place. He received five years’ imprisonment for the robbery and concurrent six-month sentences for the other offences.

The robbery involved striking a 69-year-old man on the head with a hammer in his home, causing scalp lacerations and a depressed skull fracture, before taking property from the victims. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the five-year robbery sentence as unduly lenient. The central issue was whether the court should increase a sentence it accepted was lenient.

1. The court granted leave for the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, but declined to alter the sentence. The five-year sentence for robbery was lenient, but it was not appropriate to interfere with it.

2. The offending was grave. It involved a vulnerable elderly couple in their home, repeated hammer blows to one victim’s head, serious physical injury, psychological harm and theft. The offender also had relevant previous convictions, including robbery. These were substantial aggravating features.

3. The court nevertheless took account of the absence of evidence that the offender had gone to the house intending robbery or violence. The hammer was used spontaneously. It also gave substantial credit for the early guilty plea, genuine remorse and the offender’s efforts to address drug addiction. The more serious reported home-invasion examples involved planned night-time entries and gratuitous violence of a substantially different order.

4. Had the case been contested, an appropriate sentence would have been at least eight years and probably about nine years. After allowance for the guilty plea, the appropriate level was about six years. Although the imposed sentence was therefore about one year too low, double jeopardy was material: an Attorney General’s reference brings the offender before the court for effective re-sentencing. In all the circumstances, that consideration meant that the court would not increase the sentence.

• Court of Appeal (Criminal Division) — on the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave but left the sentence unchanged: [2004] EWCA Crim 3209.
• Crown Court at Swansea — on 27 August 2004, the offender received five years’ imprisonment for robbery and concurrent six-month sentences for the remaining offences.