Attorney General's Reference Nos. 12 and 13 of 2007

On an Attorney General sentencing reference, the court retains a discretion not to interfere even where the original sentence was extremely lenient. Robbery involving violence ordinarily calls for custody, but the court must consider the particular context of the offence. Where offenders have spent a substantial period facing the prospect of detention after a reference, the resulting element of double jeopardy may justify leaving an unusual sentence undisturbed in the interests of justice.

Two young offenders, each with no previous convictions, pleaded guilty at the first opportunity to robbery following an assault on a bus. The sentencing judge imposed a two-year conditional discharge on each offender, despite pre-sentence reports suggesting community penalties.

The Attorney General sought leave under section 35 of the Criminal Justice Act 1988 to refer the sentences. The central issue was whether the conditional discharges were so lenient that the Court of Appeal should interfere and impose detention or another penalty.

1. The court granted leave to refer the sentences but did not interfere with the conditional discharges.

2. Robbery involving violence ordinarily requires the court to begin from the premise that custody is likely to be the appropriate disposal. The court noted that the earlier guidance in Attorney General's Reference Nos 4 and 7 of 2002 [2002] EWCA Crim. 127 had been superseded, in the relevant sentencing context, by the definitive Sentencing Guidelines Council guideline.

3. The circumstances nevertheless made this offence atypical. The violence began after the first offender mistakenly believed that the victim had participated in earlier bullying. The taking of the iPod was, in context, a collateral consequence of the assault rather than part of the offenders' original intention. Those matters did not remove the need for punishment, and the court described the conditional discharges as extremely lenient.

4. However, the offenders had lived for a substantial period with the risk that the reference would result in detention. That exposure created an element of double jeopardy. The court exercised its discretion to conclude that, despite the sentencing judge's very unusual course, the interests of justice did not require alteration of the orders.

• Court of Appeal (Criminal Division): On the Attorney General's reference under section 35 of the Criminal Justice Act 1988, the court granted leave but left the conditional discharges undisturbed.

• Sentencing court (not otherwise identified): On 5 February 2007, each offender received a two-year conditional discharge for robbery.