Attorney General's Reference No. 157 OF 2004

On an Attorney General’s reference under Criminal Justice Act 1988, the court may find a sentence unduly lenient without substituting a custodial sentence. The sentencing court must assess the applicable sentencing guidance and comparators against the particular aggravating and mitigating features. A substantially completed community penalty, together with the double-jeopardy consequences of replacing a non-custodial sentence, may make intervention inappropriate even where the sentence imposed was unduly lenient in principle.

The offender pleaded guilty at an early stage to causing the death of his best friend by careless driving. After drinking with the deceased, he drove while substantially over the permitted alcohol limit and was uninsured. His vehicle crossed to the wrong side of the A30 and collided with an oncoming car, killing the passenger.

On 29 November 2004, the sentencing judge imposed a community punishment order of 240 hours with a curfew order. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issues were the proper custodial sentence in principle and whether the Court of Appeal should alter a substantially completed community sentence.

1. Reference allowed; sentence unchanged. The court granted the Attorney General leave to refer the sentence and held that it was unduly lenient. It nevertheless declined to substitute a sentence of imprisonment.

2. The offending involved an unnecessary journey by an offender who knew that drink had significantly affected him. His blood-alcohol level was approximately two and a half times the permitted limit, he was uninsured, and his driving caused the death of his passenger. Early guilty plea, remorse, youth and previous good character were substantial mitigation. The deceased’s mother also regarded the event as an accident and did not seek retribution.

3. The court considered the sentencing guidance in R v Cooksley and others [2004] 1 Cr App R (S) 1. It rejected the submission that the case clearly fell within the intermediate category attracting two to three years’ imprisonment. The appropriate sentence in principle was nevertheless 18 months’ imprisonment.

4. Attorney-General's Reference No 77 of 2002 (Stephen Scotney) [2003] 1 Cr App R (S) 111 did not make a community penalty appropriate. The alcohol level there was lower and the deceased’s family circumstances were exceptionally mitigating. Those features did not make the cases precisely analogous.

5. Intervention was not appropriate because the offender had completed 178 of the 240 hours of unpaid work. The court would also have had to allow for double jeopardy when replacing an original non-custodial sentence. No alteration to the sentence was made.

• Court of Appeal (Criminal Division): By [2005] EWCA Crim 537, the court granted leave for an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, but declined to vary it.

• Sentencing court (not identified): On 29 November 2004, imposed a community punishment order of 240 hours and a curfew order following a guilty plea to causing death by careless driving.