Attorney General Reference Nos 144 & 145 of 2004

A sentence for a serious dwelling-house robbery may be unduly lenient where it fails to reflect aggravating features including the victim’s vulnerability, an asserted firearm, the taking of a valuable vehicle, and offending while on bail. Early guilty pleas, remorse and youth remain material mitigation, but do not prevent an increased sentence where the original term is plainly inadequate.

When increasing an unduly lenient sentence, the court must give proper allowance for double jeopardy, since the offender is sentenced again on a reference by the Attorney General.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the concurrent sentences of 30 months imposed at Northampton Crown Court on George Johnston and Jason McShefferty for two robberies.

The reference concerned the first robbery. The offenders entered a woman’s home by deception, restrained her, asserted that they had a gun, stole her keys and purse, and drove away in her car. Johnston was on bail and had a substantial record. Both offenders pleaded guilty at an early stage; McShefferty had made admissions and expressed remorse. The central issue was whether the 30-month terms were unduly lenient and, if so, what substituted sentences were appropriate.

1. The court granted leave and held that the concurrent terms of 30 months for the dwelling-house robbery were quite plainly unduly lenient. The offending involved entry into the victim’s home by deception, physical restraint, an asserted gun, theft of her car and other property, and threats of return. The victim was vulnerable. Johnston was also on bail and had a substantial offending history.

2. The court accepted that early guilty pleas, McShefferty’s admissions and remorse, and Johnston’s age were mitigating features. They did not justify sentences as low as two and a half years for this offence. The court stated that it would have expected a sentence of five years’ imprisonment for McShefferty, and five years’ detention in a young offender institution for Johnston, in the court below.

3. In exercising its power under section 36 of the Criminal Justice Act 1988, the court gave effect to the principle of double jeopardy: the offenders were being sentenced again by the appellate court. It therefore substituted terms of four years, rather than the five-year terms otherwise indicated. McShefferty was sentenced to four years’ imprisonment and Johnston to four years’ detention in a young offender institution.

4. Because of the length of Johnston’s substituted term, his separate 15-month sentence for other offences was ordered to run concurrently, rather than consecutively.

• Court of Appeal (Criminal Division): On a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, the court held the robbery sentences unduly lenient and substituted four-year terms.
• Northampton Crown Court: Miss Recorder Gargan imposed concurrent terms of 30 months for the two robberies on 4 November 2004.