Attorney General's Reference No. 76 OF 2005

A custodial sentence may not properly be suspended unless the material before the sentencing court supports the required exceptional circumstances. Personal mitigation and favourable character references did not provide such a basis in this case, given the seriousness of possession of an imitation firearm with intent to cause fear of violence. A sentence suspended without a proper basis is unduly lenient and may be replaced with an immediate custodial sentence on an Attorney General’s reference under section 36 of the Criminal Justice Act 1988.

The offender pleaded guilty, on a limited factual basis, to possession of an imitation firearm with intent to cause fear of violence. He had confronted two men at a garage, threatened one while holding what appeared to be a gun, and struck him with its butt.

The Crown Court imposed two years’ imprisonment, suspended for two years, with a supervision order, compensation and prosecution costs. The Attorney General sought leave to refer the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. The issue was whether there was material capable of amounting to exceptional circumstances justifying suspension.

1. The Court granted leave and held that the suspended sentence was unduly lenient.

2. The sentencing judge had accepted that the offence was so serious that only custody was justified. The mitigation relied on the offender’s disturbed background, his distress about events affecting a person he regarded as his stepfather, and favourable character references. That material provided no proper basis for finding exceptional circumstances which could justify suspending the custodial term.

3. Two years’ imprisonment was the minimum sentence which the sentencing judge had indicated before the guilty plea and was the appropriate sentence on the reference. The Court replaced the suspended sentence with an immediate sentence of two years’ imprisonment for the firearm offence.

4. The supervision order, compensation order and costs order were removed. The common-assault count had been ordered to lie on the file. The offender was ordered to surrender to Chichester police by noon on the following day; the sentence would commence on surrender.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court held the Crown Court’s suspended sentence unduly lenient and replaced it with two years’ immediate imprisonment.

• Crown Court: On 20 June 2005, imposed two years’ imprisonment suspended for two years, with a supervision order, compensation and costs.