Attorney-General's Reference No 44 of 2007

An offence under section 18 of the Offences Against the Person Act 1861 requires an intention to cause really serious injury. It will ordinarily require an immediate custodial sentence of significant length. That is especially so where the offender has armed himself, entered the victim’s home at night as a trespasser, and attacked the victim while asleep.

When correcting an unduly lenient sentence on an Attorney-General’s reference, the court must allow for double jeopardy. That consideration may reduce the sentence substituted, but does not prevent an immediate custodial term where the original suspended sentence was wholly exceptional.

The Attorney-General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient an eight-month sentence of imprisonment, suspended for 18 months, imposed at Liverpool Crown Court.

The offender had pleaded guilty at the earliest opportunity to wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. After a dispute in a public house, he entered the victim’s home at night and struck the sleeping victim’s head and face with a wheel brace.

The central issue was whether the suspended sentence properly reflected the gravity of an intentional wounding committed with a weapon in the victim’s home.

1. The court granted leave and held that the suspended sentence was unduly lenient. It substituted an immediate sentence of three years’ imprisonment.

2. Section 18 of the Offences Against the Person Act 1861 requires proof that the offender intended to cause really serious injury. The sentencing judge appeared not to have appreciated that essential element. The offence was therefore inherently grave and ordinarily called for an immediate custodial sentence of significant length.

3. The gravity was substantially increased because the offender deliberately armed himself, entered the victim’s house at night as a trespasser, and attacked him while he was asleep. The court treated the early guilty plea, remorse, absence of permanent injury, and effective previous good character as substantial mitigation. Those factors did not justify a suspended sentence.

4. The court drew support from Attorney-General's Reference Nos 59 and 60 of 1998 (R v Goodwin & Ors) [1999] 2 Cr App R(S) 128 and the Attorney-General’s reference authorities concerning armed attacks in a victim’s home. A sentence of four years’ imprisonment was warranted at the point of sentence.

5. The court then gave credit for double jeopardy. The offender had already undergone nearly two months of the suspended-sentence period and was not in custody when the reference was determined. Those matters justified reducing the substituted term to three years. He was directed to surrender to Southport police station by midday on the following day; the sentence was to run from surrender.

• Court of Appeal (Criminal Division): By [2007] EWCA Crim 1530, granted the Attorney-General leave under section 36 of the Criminal Justice Act 1988, found the sentence unduly lenient, and substituted three years’ immediate imprisonment.
• Crown Court at Liverpool: Following an early guilty plea to wounding with intent, imposed eight months’ imprisonment suspended for 18 months.