Guirdham, R. v

A sentence for a violent robbery may be unduly lenient where it fails to reflect gratuitous violence, particularly a kick to the victim’s face with a shod foot, and the aggravating circumstances require immediate custody.

However, a finding that a sentence is unduly lenient does not require its alteration. On an Attorney General’s reference, the Court of Appeal retains a discretion to leave the sentence unchanged where custody would create an unjust disparity with a co-offender whose sentence cannot be referred, and where the offender has made substantial progress under an intensive community order. The public interest may favour completion of that order.

The offender pleaded guilty to robbery after joining a co-defendant in an alcohol-fuelled revenge attack on a 16-year-old victim. While the victim was on the ground, the offender kicked him in the face with a steel-capped boot and took his chain. The victim sustained significant physical and psychological harm.

The co-defendant pleaded guilty to unlawful wounding under Offences Against the Person Act 1861, section 20. Both men received community sentences. The Attorney General referred only the offender’s robbery sentence as unduly lenient, because no referral power was available in respect of the co-defendant’s section 20 sentence.

The central issue was whether the robbery sentence was unduly lenient and, if so, whether it should be replaced by immediate custody.

1. The court granted leave for the Attorney General’s reference and held that the robbery sentence was unduly lenient.

2. The sentencing judge had been placed in difficulty by the Crown’s acceptance of the co-defendant’s plea to unlawful wounding. Nevertheless, the offender’s own conduct was grave. He kicked the victim in the face with a steel-capped boot after the co-defendant had attacked him and while the victim was on the ground. It was not material to identify precisely which assailant caused each injury.

3. This was an unjustified revenge attack, fuelled by excessive alcohol consumption. Its gravity lay principally in the gratuitous violence rather than the taking of the chain. The judge’s indication of 18 months after trial, or 12 months after a plea, was at the low end even before the decision to impose a non-custodial sentence. Immediate custody should have been imposed.

4. The court nevertheless declined to vary the sentence. Custody for the offender would create a significant and unjust disparity with the co-defendant, whose sentence for the same incident could not be referred. Further, during the four months since sentence, the offender had complied with the intensive community order, completed its punitive element, observed curfew, and made substantial progress. It was not in the public interest to terminate that order and substitute custody.

• Court of Appeal (Criminal Division): On an Attorney General’s reference, the court held that the community sentence for robbery was unduly lenient but declined to vary it.
• Crown Court: The offender pleaded guilty to robbery and received a Community Punishment and Rehabilitation Order, a Curfew Order, and compensation.