Attorney General Reference No 101 of 2006

A court should defer sentence only where a non-custodial sentence is a proper and realistic possibility. A Crown Court sentencing serious violence is not constrained by a recent Youth Court supervision order. The welfare and rehabilitation of a young offender remain important, but do not displace punishment, deterrence, public confidence and the interests of a seriously injured victim.

On an Attorney-General reference, the Court of Appeal must exercise its own discretion after finding a sentence unduly lenient. It may consider events during the deferral period, but limited progress under supervision will not justify leaving an inappropriate deferral in place. Where there is a significant risk of serious harm, an extended sentence under the Criminal Justice Act 2003 may sufficiently protect the public without detention for public protection.

The Attorney-General referred, under section 36 of the Criminal Justice Act 1988, a sentence imposed on a 17-year-old offender who had pleaded guilty at Barrow Crown Court to causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, and assault occasioning actual bodily harm, contrary to section 47 of that Act.

The section 18 offence involved a deliberate blow to the back of the victim's head with a large piece of wood. The victim suffered severe and irreversible loss of sight in one eye. The offender had previous violence convictions and committed further violent offending while on bail. Three days after the Youth Court imposed a supervision order with an intensive supervision and surveillance programme for affray, the Crown Court deferred sentence for six months.

The central issues were whether deferral was unduly lenient and, if so, whether the appropriate substituted sentence was detention for public protection, an extended sentence, or a detention and training order.

1. The court granted leave and held that the deferred sentence was unduly lenient. The Crown Court had wrongly treated the Youth Court's recent supervision order as constraining its sentencing discretion. That order had barely begun and concerned offending materially less grave than the offences before the Crown Court.

2. Deferral was inappropriate. The Sentencing Guidelines Council's advice that deferral should generally be confined to cases at the custody or community-sentence threshold was relevant to young offenders. Deferral necessarily conveyed that compliance might produce a lesser category of sentence. It was therefore available only if a non-custodial outcome was a proper and realistic possibility. It was not so here.

3. The section 18 offence was particularly grave. The offender had deliberately struck an unsuspecting victim on the head with a weapon and caused near blindness in one eye. His age, guilty pleas, difficult upbringing and personal difficulties were mitigating, but could not outweigh the seriousness of the violence, his record and the need for immediate custody. The court applied the sentencing guidance in Attorney-General's Reference Nos 59, 60 and 63 of 1998 [1999] 2 Cr App R(S) 128.

4. Having found the sentence unduly lenient, the court had to exercise its own discretion. It considered the offender's conduct during the three-month supervision period. His breaches and only limited later improvement did not justify allowing the deferral to continue.

5. The offender posed a significant risk to the public of serious harm from further specified offences. However, detention for public protection under section 226(3) of the Criminal Justice Act 2003 was unnecessary. Public protection could be achieved by an extended sentence under section 228, having regard to his age and capacity for change.

6. The court substituted a custodial term of two and a half years and an extension period of two and a half years on the section 18 count. It imposed no separate penalty for the section 47 count. The offender was required to surrender to custody forthwith.

• Court of Appeal (Criminal Division): On an Attorney-General reference under section 36 of the Criminal Justice Act 1988, the court held the deferral unduly lenient and substituted an extended sentence: [2006] EWCA Crim 3335.

• Crown Court: On 4 September 2006, the Crown Court deferred sentence for approximately six months after the offender's guilty pleas to the section 18 and section 47 offences.

• Youth Court: On 1 September 2006, the Barrow-in-Furness Youth Court imposed a 12-month supervision order with an intensive supervision and surveillance programme for affray.