Attorney General's Reference No. 35 of 2005

On a reference concerning an unduly lenient sentence, the Court may exceptionally refuse to substitute immediate custody where unusual procedural circumstances make that course inappropriate. Sustained cruelty to a very young child ordinarily calls for a substantial custodial sentence. However, where the offender may have sought to withdraw a guilty plea but accepted a conditional discharge after it was proposed by the sentencing judge, the Court may decline to alter the sentence. Serious failures of case management may form part of the exceptional context, although they do not make the original sentence appropriate.

The offender pleaded guilty in the Crown Court at Minshull Street, Manchester, to cruelty to a child under 16 contrary to section 1(1) of the Children and Young Persons Act 1933. The child, aged 22 months, had sustained extensive bruising, hair loss and an injury consistent with a cigarette burn while in the offender's care.

After numerous adjournments to obtain reports, the sentencing judge imposed a conditional discharge. The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the Court should quash that sentence and impose immediate imprisonment despite the exceptional history surrounding the guilty plea and sentencing process.

1. Application refused. The Court granted leave for the Attorney General's reference, but refused to quash the conditional discharge or substitute imprisonment.

2. If the guilty plea stood, the offending plainly required custody. This was sustained cruelty to a small child, rather than a momentary loss of temper. The Court considered that the offence would ordinarily have merited at least 12 months' imprisonment.

3. The Court nevertheless treated the circumstances as very unusual. The offender had denied responsibility and suggested that his guilty plea had been entered under duress. His representatives may therefore have been unable to continue acting, and there might otherwise have been an application to withdraw the plea. Instead, the judge offered a conditional discharge, which counsel considered it professionally open and in the offender's interests to accept.

4. Although the ordinary course would have been to quash the sentence and impose imprisonment, it was inappropriate to do so in that exceptional procedural setting. The Court described the Crown Court process as lamentable: fourteen appearances before sentence showed an unacceptable absence of proactive case management. Those defects, and the circumstances in which the conditional discharge was accepted, justified refusing the reference under section 36 of the Criminal Justice Act 1988.

• Court of Appeal (Criminal Division) Granted leave on the Attorney General's reference under section 36 of the Criminal Justice Act 1988, but refused to alter the sentence.
• Crown Court at Minshull Street, Manchester The offender pleaded guilty on 4 May 2004 and was sentenced on 8 March 2005 to a conditional discharge.