Attorney-General's Reference No.19 of 2007

On a reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal will interfere only where the sentence is significantly too low and falls outside the available sentencing bracket. The jurisdiction does not permit substitution merely because the appellate court would have imposed a marginally different sentence.

For causing grievous bodily harm with intent by using a car as a weapon, material seriousness may arise where the offender could have ended the altercation by leaving but instead returns and drives at people again. The court must assess repetition, premeditation, the gravity and lasting effect of the injuries, and relevant personal mitigation.

The defendant was convicted after trial of causing grievous bodily harm with intent. During a dispute at a garage, he drove his car at Paul Mason and later returned after leaving the scene. He again drove onto the pavement towards the Mason men. Peter Mason was struck and suffered a serious comminuted leg fracture with lasting disability.

The trial judge imposed four years’ imprisonment. The Attorney General sought leave to refer that sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether four years fell outside the available sentencing bracket for the deliberate use of a motor car as a weapon.

1. The court granted leave, allowed the Attorney General’s reference and quashed the four-year sentence. It substituted six years’ imprisonment. The remaining sentences and the disqualification were left undisturbed.

2. The section 36 jurisdiction is engaged where a sentence is significantly too low. It does not authorise the court simply to replace a sentence with one that is marginally different from the sentence selected at trial.

3. The sentence was outside the available bracket. The defendant had a ready means of ending the altercation by driving away. Instead, after leaving for several minutes, he returned and deliberately drove at people on the pavement for a further time. That repeated use of the car as a weapon substantially increased the seriousness.

4. The court treated the case as more serious than Attorney General’s Reference No 13 of 2001 (R v Cole), [2001] 2 Cr App R(S) 112, because there was a further attempt to strike a pedestrian. It remained less serious than R v Twumasi, [2005] 2 Cr App R(S) 107, and R v Evans, [2002] 2 Cr App R(S) 12, where the injuries and, in Evans, premeditation were greater. The defendant’s limited and dated record, personal progress and satisfactory conduct in custody did not prevent the increase.

• Court of Appeal (Criminal Division): on an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court quashed the four-year sentence and substituted six years’ imprisonment.

• Trial court: following trial, the defendant was convicted of causing grievous bodily harm with intent and sentenced to four years’ imprisonment.