Attorney General's Reference No 119 and 120 of 2005, Re

Deliberate, sustained and grave violence must receive a custodial sentence that properly reflects its seriousness, deters comparable conduct and maintains public confidence in criminal justice.

A court must determine the appropriate custodial term before considering suspension. It is wrong to choose a term merely because it is capable of suspension. A guilty-plea reduction and an allowance for double jeopardy may then be made when correcting an unduly lenient sentence.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer sentences imposed on Shusing Jim and Steven Jim as unduly lenient.

Both offenders pleaded guilty at Swansea Crown Court to wounding with intent under section 18 of the Offences Against the Person Act 1861. They had jointly subjected the victim to a sustained assault involving punches, kicks and implements, causing extensive lacerations, dental injury and a fractured tibia. The Recorder imposed 50 weeks’ imprisonment, suspended for two years, on each offender.

The central issue was whether those sentences properly reflected the gravity of the offending after allowing for the accepted mitigation, including the assumed degree of provocation and the guilty pleas.

1. The court granted leave and allowed the Attorney General’s reference. The 50-week suspended sentences were unduly lenient. Sentences of 26 months’ imprisonment were substituted for each offender, who were ordered to surrender into custody on the following Monday at noon.

2. The assault was exceptionally serious. It involved prolonged violence by two adult men against one victim, repeated use of weapons and continued attacks when the victim was unconscious or unable to resist. Although the court was required to assume a degree of provocation because the prosecution had accepted the bases of plea, that mitigation could not justify the sentences imposed.

3. The court applied the sentencing rationale described in Attorney General’s Reference Nos 59, 60 and 63 of 1998 (Goodwin and others) ([1999] 2 Cr.App.R(S) 128): grave deliberate violence requires severe punishment to mark its seriousness, deter others and preserve public confidence. On the assumed facts, the least appropriate sentence after trial was four years’ imprisonment. Applying the approach in Attorney General’s Reference No 99 of 2002 (Deeley) ([2003] 2 Cr.App.R (S) 43), the full guilty-plea discount reduced that figure to about 32 months.

4. The Recorder had wrongly selected a period of imprisonment that could be suspended. Under the relevant Sentencing Guidelines Council guidance, the proper custodial term must be fixed before suspension is considered. Allowing for double jeopardy, the proper substituted sentence was 26 months for each offender.

5. The court also stated that the alleged threats by the victim had not been proved. Courts should observe sections 58 to 61 of the Criminal Procedure and Investigations Act 1996 when derogatory assertions are made in mitigation, and should remember the interests of the person against whom they are made.

1. Court of Appeal (Criminal Division) — Granted leave on the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, held the suspended sentences unduly lenient, and substituted 26 months’ imprisonment for each offender: [2006] EWCA Crim 1501.
2. Swansea Crown Court — On 21 November 2005, imposed 50 weeks’ imprisonment, suspended for two years, on each offender following guilty pleas to wounding with intent.