Attorney General's Reference No. 147 OF 2004

On an Attorney General reference for undue leniency, a community rehabilitation order may be quashed where it fails to reflect the gravity of repeated violent offending, including an assault with intent to rob involving a knife and a related assault committed in breach of an injunction. The substituted term should reflect the individual offences and overall criminality. In fixing it, the court should take account of the double-jeopardy feature of resentencing and the practical change from a non-custodial sentence to immediate custody. Those considerations may reduce, but do not preclude, a substantial immediate custodial sentence.

The offender pleaded guilty at Manchester Crown Court to assault occasioning actual bodily harm against his former partner, assault with intent to rob an Afghan student, and common assault on that student. The former-partner assault occurred after an injunction had prohibited contact. The attempted robbery involved repeated punches, pursuit into a lift and a threat with a knife.

On 11 November 2004, the Crown Court imposed concurrent two-year community rehabilitation orders, including attendance at a domestic-violence programme. The Attorney General, through the Solicitor General, sought leave under Criminal Justice Act 1988, section 36, to refer the sentences as unduly lenient. The court also received evidence that the offender had substantially failed to comply with probation appointments and had not attended the programme induction.

1. The Attorney General’s reference was allowed. The court granted leave and held that each concurrent community rehabilitation order was unduly lenient. The sentences did not reflect the seriousness of the offending or its aggravating features.
2. The assault with intent to rob involved three blows, pursuit of the victim into a lift, an attempt to prevent him reaching safety, and a threat with a 20-centimetre knife. The common assault after arrest was an additional aggravating feature. The assault occasioning actual bodily harm was also aggravated because it was committed in breach of a civil injunction protecting the offender’s former partner.
3. The court held that the appropriate total sentence in the Crown Court would have been at least four years’ imprisonment. It would have expected a significant custodial sentence for assault with intent to rob, a shorter concurrent sentence for the common assault on the same victim, and a short consecutive term for the assault occasioning actual bodily harm.
4. In selecting the substituted sentence, the court took account of double jeopardy, the offender’s failure to respond to the community order, and the fact that he would now enter custody after initially receiving a non-custodial sentence. It therefore imposed a reduced total of three years’ imprisonment.
5. The court quashed the Crown Court sentences and substituted two and a half years’ imprisonment for assault with intent to rob, with six months concurrent for common assault, and six months consecutive for assault occasioning actual bodily harm. The offender was ordered to surrender to custody by noon on the following day.

1. Court of Appeal (Criminal Division) — on an Attorney General reference under section 36 of the Criminal Justice Act 1988, the court granted leave, held the sentences unduly lenient, and substituted a total sentence of three years’ imprisonment: [2005] EWCA Crim 845.
2. Manchester Crown Court — on 11 November 2004, imposed concurrent two-year community rehabilitation orders for the three offences.