Attorney General's Reference No. 48 of 2005

A sentence is unduly lenient where it falls below the least sentence properly open to the sentencing judge after allowance for all material aggravating and mitigating features, including a guilty plea. On an Attorney General’s reference under Criminal Justice Act 1988, the Court of Appeal may quash and replace such a sentence. In deciding whether, and by how much, to increase it, the court must take account of the offender’s double jeopardy: the offender faces a second sentencing process after the original sentence has been imposed.

The offender, aged 19, pleaded guilty in Leicester Crown Court to attempted robbery of a vulnerable 64-year-old woman. He attacked her from behind, tried to take her handbag, punched her and caused her to fall. The victim suffered injuries and lasting fear.

He had an extensive record for violence, disorder, theft and breaches of community sentences. The offence was committed while he was on bail and was said to have funded a long-term drug addiction. The sentencing judge imposed two years’ detention in a young offender institution.

The Attorney General applied under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central questions were whether two years was below the permissible range and whether the court should interfere despite double jeopardy.

1. The court granted leave to refer the sentence, held that it was unduly lenient, quashed it and substituted two-and-a-half years’ detention in a young offender institution.

2. The seriousness of the attempted robbery required substantial weight to be given to its aggravating features. The victim was elderly and vulnerable. The offender used more than trivial violence, the offence had a serious effect on the victim, and he had an appalling record. He committed the offence while on bail and for the purpose of funding a long-term drug addiction.

3. The court allowed for the offender’s age, his guilty plea, his expressed remorse, his apology to the victim, and evidence of improving behaviour in custody. The plea nevertheless followed earlier denials and the offender had been caught at the scene.

4. Taking those matters together, the least sentence properly available after a trial was four years’ detention. After allowing for the guilty plea and other mitigation, the least proper sentence was three years. The two-year sentence was therefore outside the permissible range.

5. The court then considered double jeopardy. It concluded that the original sentence should not stand, but that double jeopardy required moderation of the increase. A substituted term of two-and-a-half years’ detention was appropriate.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the sentence unduly lenient, quashed it and substituted two-and-a-half years’ detention.
• Leicester Crown Court: On 27 April 2005, Judge Lea sentenced the offender to two years’ detention in a young offender institution following his guilty plea to attempted robbery.