Attorney General's Reference No. 55 OF 2005

A sentence which is plainly lenient need not be disturbed where the sentencing judge was entitled, on exceptional and well-supported personal material, to prefer a structured rehabilitative community sentence to substantial detention. The appellate court should respect that evaluative sentencing choice where it was open to the judge on the material before him.

A later breach of the community sentence does not retrospectively make the original sentence one with which the appellate court should interfere. Breach proceedings may instead be dealt with by the sentencing court.

The offender, aged 17 when he committed the offence, pleaded guilty to wounding with intent after attacking a friend while drunk. He bit off the victim's ear and seriously injured his finger. The victim was left permanently disfigured and faced reconstructive treatment.

On 28 April 2005, Judge Lyon in the Crown Court imposed a three-year community rehabilitation order with anger-management work, an 80-hour community punishment order, and a four-month curfew. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence.

The central issue was whether the exceptional community-based sentence was one with which the Court of Appeal should interfere, notwithstanding the gravity of the offence and the offender's subsequent breach proceedings.

1. The Attorney General's application was refused. The court granted leave to make the reference, but declined to interfere with the sentence imposed by the Crown Court.
2. The offence was exceptionally serious. It would ordinarily have called for a substantial period of detention, potentially in the region of four to five years. The victim had suffered grave and lasting injury.
3. Nevertheless, the sentencing judge was entitled to regard the case as exceptional. The pre-sentence, psychiatric and psychological material showed that the offender's severely violent and disturbed upbringing had caused serious damage and was connected with attacks of anger. The professional evidence supported a structured package of rehabilitative assistance, beyond the earlier supervision order that had failed to address his needs.
4. The sentencing judge had recognised the exceptional nature of the course adopted. He was entitled to conclude that a further opportunity for rehabilitation in the community was justified on the particular material before him. Although the sentence was lenient, that justification meant that appellate intervention was not appropriate.
5. The offender's subsequent failure to take advantage of the order, and the prospect of breach proceedings before Judge Lyon, did not alter the correctness of the original sentencing decision. Those later events did not permit the Court of Appeal to interfere with the order as originally made.

• 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 refused the application: [2005] EWCA Crim 2320.
• Crown Court — On 28 April 2005, Judge Lyon imposed a three-year community rehabilitation order with anger-management work, an 80-hour community punishment order, and a four-month curfew for wounding with intent.