Attorney General's Reference No. 77 OF 2005

A community sentence for a serious armed robbery may be unduly lenient where it fails to reflect the gravity of threats with a large bladed weapon, the vulnerability of young victims, and relevant offending history.

However, on an Attorney General’s reference, a finding of undue leniency does not invariably require an increased sentence. The court retains a discretion to leave the sentence undisturbed where subsequent events, including the offender’s constructive engagement with the community order, mean that intervention would not serve the public interest.

The offender pleaded guilty to robbing a 16-year-old of a mobile telephone. At night, he threatened two 16-year-olds with what appeared to be a Samurai sword, struck one with it, and threatened further violence. He was aged 20 when sentenced and had previous offending, including offences for which he was on bail when the robbery was committed.

At Worcester Crown Court, the Recorder imposed a 12-month community rehabilitation order, 100 hours’ community punishment, a curfew order and offending-behaviour programme requirements. The Attorney General referred the sentence under Criminal Justice Act 1988, section 36, as unduly lenient. The central issue was whether the Court of Appeal should increase the sentence after finding it unduly lenient.

1. The court granted leave under section 36 of the Criminal Justice Act 1988. It held that the Recorder’s community-based sentence was unduly lenient.

2. The robbery involved serious aggravating features. The offender used a large bladed weapon to threaten and strike a victim, threatened to cut off the boys’ hands, and targeted two younger and vulnerable victims at night. He had an unimpressive record, had committed the robbery while on bail for other offences, and was assessed as presenting a high risk of reoffending.

3. The mitigating features did not make a non-custodial sentence appropriate. They included an early guilty plea, the offender’s youth, six months spent in custody on remand, and the absence of physical injury. The court stated that the proper sentence would have been of the order of three years’ detention in a young offender institution.

4. Nevertheless, the court accepted that it should exercise its discretion not to interfere. Since sentence, the offender had taken advantage of the opportunity provided by the order and had completed 36 of the required 100 hours of community punishment. In the particular circumstances, increasing the sentence would not serve the public interest.

5. The reference therefore resulted in a declaration that the sentence was unduly lenient, but the sentence imposed at Worcester Crown Court was left unchanged.

• Court of Appeal (Criminal Division): Granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, but declined to interfere: [2005] EWCA Crim 2485.
• Worcester Crown Court: On 22 June 2005, imposed a 12-month community rehabilitation order, 100 hours’ community punishment, a curfew order and offending-behaviour programme requirements for robbery.