Bates, R. v

A sentencing judge must impose the sentence considered right, rather than calibrate it to avert a possible Attorney General reference for undue leniency. Where the court’s dealings before a plea create a clear and legitimate expectation of a non-custodial or short custodial sentence, it is wrong in principle, without warning, to impose a substantially different custodial sentence reflecting another view. The Court of Appeal may intervene even where the sentence is not manifestly excessive and would ordinarily have been upheld. A substituted sentence may be required to correct unfairness in the sentencing process.

The applicant pleaded guilty on re-arraignment to wounding with intent, having slashed the complainant’s face with a broken bottle. The complainant suffered a permanent facial injury and scarring. The Crown Court at Blackfriars imposed three years’ imprisonment.

The applicant renewed her application for leave to appeal against sentence. She contended that exchanges at earlier hearings had indicated that a non-custodial sentence would follow. The central issue was whether the earlier exchanges created a legitimate sense of grievance and made the eventual sentence unfair, despite its otherwise appropriate length.

1. The appeal was allowed. The court quashed the sentence of three years’ imprisonment and substituted eight months’ imprisonment, a term intended to permit the applicant’s immediate release.
2. The three-year sentence was not manifestly excessive. Given the deliberate broken-bottle assault, its grave potential consequences and the permanent injury caused, it would ordinarily have been a proper sentence.
3. The difficulty arose from the sentencing process. At the earlier hearings, the judge explored whether a non-custodial outcome would prompt an Attorney General reference and expressed strong views about the applicant’s vulnerability, personal history and mental health. Although no firm indication or binding promise was given, those exchanges created a clear impression that the likely outcome was a community order or, at most, a short custodial term.
4. A judge should impose the sentence that he or she considers right. The prospect that a sentence might be referred as unduly lenient must not drive the choice of sentence. The court deprecated the course taken because it risked creating unjustified expectations before sentence.
5. In these particular circumstances, imposing without warning a condign sentence based principally on the seriousness of the offence was wrong in principle. A fair-minded observer would regard the departure from the expectation created during the plea process as an injustice. Appellate intervention was therefore necessary notwithstanding the substantive appropriateness of the original term.

• Court of Appeal (Criminal Division) — The renewed application for leave was granted and the appeal against sentence was allowed: [2006] EWCA Crim 2019.
• Crown Court at Blackfriars — Following a guilty plea to wounding with intent, the applicant was sentenced on 17 February 2006 to three years’ imprisonment.