Attorney General's Reference No. 82 OF 2005

A drug treatment and testing order will ordinarily be inappropriate for serious offending involving significant violence or threats of violence, since public protection ordinarily requires a deterrent sentence. That principle does not impose an inflexible rule. A sentencer may exceptionally adopt a rehabilitative disposal where the public interest justifies allowing it to be tried.

In deciding whether to interfere on an Attorney General’s reference, the court must assess the particular offending and offender. It may uphold an unusual order where the violence falls materially short of the serious violence or lethal-weapon threats contemplated by the general rule, and there is a realistic and evidenced prospect that treatment will prevent further offending.

The offender pleaded guilty at the first opportunity to three robberies of lone cashiers at all-night petrol stations. He used deodorant spray against two cashiers and pushed a third cashier before taking cash from the tills. He had extensive previous convictions, including earlier robbery convictions, and a longstanding drug problem.

At Chelmsford Crown Court on 5 July 2005, the Recorder imposed a two-year drug treatment and testing order. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the seriousness of the robberies required the Court of Appeal to replace that unusual rehabilitative sentence with imprisonment.

1. The court granted leave to refer the sentence but affirmed it. Although a substantial sentence of imprisonment would ordinarily have been the proper disposal for three robberies of vulnerable premises, it was not necessary in the public interest to interfere with the Recorder’s order.

2. The court accepted the general principle stated in Attorney-General's Reference No 28 of 2001 (Daniel McCollins) [2002] 1 Cr App R (S) 250 and Attorney-General's Reference No 66 of 2003 (Moussin Boujettif) [2003] EWCA Crim 3514. Serious offending, especially where it involves significant violence or threats of violence, normally calls for a deterrent sentence rather than a drug treatment and testing order. The public must be protected and such an order may otherwise appear wholly disproportionate.

3. That principle was not a straitjacket. Neither earlier authority excluded the possibility that, exceptionally, the public interest could favour giving an offender a treatment-based opportunity rather than immediately imposing deterrent custody.

4. The present robberies were serious, but they did not display the hallmarks of the serious violence or threats of violence with a lethal weapon identified as normally precluding such an order. The court also took account of the offender’s drug-driven history, the professional evidence of a realistic prospect of abstinence and stability, and his positive response to the order after sentence.

5. The court therefore left the two-year drug treatment and testing order in force. Failure to complete it satisfactorily would expose the offender to the substantial custodial sentence ordinarily appropriate for the offending.

• Court of Appeal (Criminal Division): Granted the Attorney General leave to refer the sentence under section 36 of the Criminal Justice Act 1988, but affirmed the sentence.

• Chelmsford Crown Court: On 5 July 2005, imposed a two-year drug treatment and testing order for three robberies.