Attorney General's Reference No. 19 OF 2006

In a case which plainly requires a significant custodial sentence, prison overcrowding cannot justify reducing the term. It may be relevant only where the sentencer is genuinely deciding between a community sentence and custody. On an Attorney-General reference, the court assesses the objective seriousness of the offending and the applicable sentencing bracket. Where the original sentence is unduly lenient, the court may increase it, while allowing for the double jeopardy inherent in resentencing the offender.

The offender was convicted at Manchester Crown Court of robbery and wounding with intent after a retrial. He and a co-accused had robbed a vulnerable hostel resident. During the robbery, the offender repeatedly stabbed the victim, causing 29 superficial stab wounds.

The judge imposed three years’ imprisonment for robbery and four years concurrently for wounding with intent. The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issues were the seriousness of the offending, the effect of prison overcrowding on sentence, and the adjustment required for double jeopardy.

1. The reference was allowed. The original total sentence of four years’ imprisonment was plainly unduly lenient. The offending involved a targeted and vulnerable victim in his home, a night-time and unprovoked joint attack, threats with a knife, repeated stabbing, theft, significant distress, and relevant previous convictions.

2. The sentencing judge had wrongly treated the offender as having no previous conviction for violence. He had also reduced the sentence because of prison overcrowding. That approach was misconceived. As explained in R v Scarth (21st March 2006), overcrowding may be relevant only at the genuine boundary between a community sentence and custody. It is not material where, as here, the gravity of the offending plainly demands a substantial custodial term. That was consistent with R v Kefford [2002] 2 Cr App R(S) 495.

3. The sentencing authorities identified an appropriate bracket of eight to ten years, and this case warranted a sentence near its upper end. The court would have expected a total sentence of about ten years. It nevertheless allowed for double jeopardy because the offender was being resentenced.

4. The court substituted six years’ imprisonment for robbery and eight years for wounding with intent, to run concurrently. The total sentence was therefore eight years’ imprisonment.

• Court of Appeal (Criminal Division) — allowed the Attorney-General’s reference and substituted concurrent terms of six years for robbery and eight years for wounding with intent.
• Manchester Crown Court — following conviction after a retrial, imposed three years’ imprisonment for robbery and four years concurrently for wounding with intent.