Attorney General's Reference No. 155 OF 2004

A non-custodial sentence will ordinarily be plainly unduly lenient where an offender possesses an imitation firearm with intent to cause fear of violence during a premeditated, group attack in the victims’ home. The seriousness of the associated violence, forced entry, the presence of children and a revenge motive may require an immediate custodial sentence.

When increasing sentence on an Attorney General’s reference, the court must nevertheless reduce the sentence otherwise appropriate to reflect double jeopardy, the replacement of a community sentence with custody, and material post-sentence rehabilitation.

The Attorney General referred Deborah Martin’s sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient.

Martin had pleaded guilty at Minshull Street Crown Court to unlawful wounding and possession of an imitation firearm with intent to cause fear of violence. The judge imposed concurrent three-year community rehabilitation orders, including a four-month curfew.

The offences followed a dispute involving Martin’s sister. Martin and two co-defendants forced their way into the victims’ home at night, assaulted Mrs Stephenson and used a craft knife. Martin later produced an imitation handgun while confronting Mr Stephenson. The issue was whether the community sentence was unduly lenient and, if so, what custodial sentence should replace it.

1. Disposition. The Court granted leave and held that the concurrent community rehabilitation orders were plainly unduly lenient. It substituted concurrent sentences of 15 months’ imprisonment for the firearms and unlawful-wounding offences.
2. Seriousness and custody. The firearms offence occurred in the course of a premeditated, revenge-motivated group attack. The attack was late at night, followed forced entry into the victims’ home, involved a craft knife, and took place while children were present. Although the firearm was an imitation, it was used to compel Mr Stephenson to open the door and enabled the offenders to leave. Those circumstances required immediate custody. A sentence of about two and a half to three years was properly to have been expected for the firearms offence, taking account of the associated wounding.
3. Mitigation. The guilty pleas, Martin’s youth, absence of relevant convictions, positive personal qualities, and the superficial nature of some injuries did not justify a non-custodial outcome. Her role in the wounding remained serious although she had not personally used the craft knife.
4. Reduction on the reference. The Court reduced the sentence otherwise appropriate because Martin was being sentenced for a second time, because custody replaced the community order originally imposed, and because she had complied with the curfew and made genuine rehabilitative progress. She was ordered to surrender to custody by noon on the following day.

• Court of Appeal (Criminal Division) — on an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, granted leave, found the original sentence unduly lenient, and substituted concurrent terms of 15 months’ imprisonment: [2005] EWCA Crim 968.
• Minshull Street Crown Court — following guilty pleas to unlawful wounding and the firearms offence, imposed concurrent three-year community rehabilitation orders with a four-month curfew.