Reference 99 of 2005 By the Attorney General, Re S.36 Criminal Justice Act 1988

A discretionary life sentence is justified where an offender is likely to pose a serious danger to the public for an indeterminate period. The assessment may be supported by the gravity of the present violence, a history of violent outbursts, psychiatric evidence and an uncertain prognosis. A specified period under Powers of Criminal Courts (Sentencing) Act 2000 must reflect punishment and deterrence, with proper allowance for double jeopardy on an Attorney General’s reference.

For a grave Offences Against the Person Act 1861 section 18 assault, sustained violence against a defenceless victim and permanent catastrophic injury are powerful aggravating features. A plea entered only after an initial not-guilty plea and repeated trial fixtures warrants limited credit.

The offender pleaded guilty at the Crown Court at Minshull Street, Manchester, to causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, and to criminal damage. Following a sustained assault involving punches, kicks, stamping and a knife threat, the victim suffered permanent catastrophic brain injury and required total care.

The sentencing judge imposed five years and five months’ imprisonment for the section 18 offence, with a consecutive month for a Bail Act offence. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the total sentence as unduly lenient. The central issues were whether the sentence should be increased and whether public protection required a discretionary life sentence rather than a determinate term.

Disposition

1. The court granted leave and allowed the Attorney General’s reference. The total sentence of five and a half years was unduly lenient. The sentences below were quashed and a discretionary life sentence was substituted for the section 18 offence.

2. The offence was at or near the highest level of seriousness for a non-fatal assault. The offender repeatedly kicked and stamped on the victim’s head, continued the violence during a distinct later episode, prevented the victim receiving help, and armed himself with a knife to enforce that prevention. The victim’s permanent condition was among the gravest consequences short of death. The offender’s intent to cause really serious bodily harm removed any mitigation otherwise arising from drink or drugs.

3. The absence of previous convictions, lack of premeditation, difficult childhood and guilty plea afforded limited mitigation. The plea did not merit a one-third reduction. It followed an initial not-guilty plea and three trial fixtures, so the court held that a determinate sentence could properly receive no more than about 15 per cent credit.

4. Desourdy [2003] EWCA Crim 3727 and Moore and Feeney [2003] EWCA Crim. 3698 supplied useful sentencing comparisons. A determinate sentence of about ten years would have been appropriate at first instance. Allowing for double jeopardy on the reference, that would have been reduced to nine years.

5. Applying the test in Attorney General’s Reference No 32 of 1996 [1997] 1 Cr.App.R (S) 261, the offender was likely to represent a serious danger to the public for an indeterminate period. His uncontrolled violent anger, prior violent behaviour, psychiatric evidence and uncertain prognosis made this the classic case for an indeterminate sentence. A further psychiatric report was unnecessary at that stage.

6. Under section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000, the specified period for punishment and deterrence was four and a half years, less 179 days spent in custody before sentence. No separate penalty was imposed for the remaining offences.

Procedural observation

The court further indicated, obiter, that where the Attorney General contends that a determinate sentence is wrong in principle and seeks an indeterminate or extended-licence sentence, that contention should be clearly set out in the reference so that the offender has proper notice.

• Court of Appeal (Criminal Division) — Granted leave under section 36 of the Criminal Justice Act 1988, allowed the Attorney General’s reference, quashed the determinate sentences and substituted life imprisonment with a specified period.

• Crown Court at Minshull Street, Manchester — Judge Lever imposed five years and five months’ imprisonment for the section 18 offence and a consecutive month for a Bail Act offence.