Attorney General's References No 125 and 126 of 2006

Robbery involving serious group violence will ordinarily require a custodial sentence. A non-custodial sentence will be appropriate only in exceptional circumstances, although an offender’s age, mitigation and personal circumstances remain material to sentence.

Where a sentence is unduly lenient, the Court of Appeal retains a discretion whether to interfere. It may exceptionally leave a community order undisturbed where the offender has made genuine progress under it, time has passed and the individual circumstances justify that course.

The Attorney General referred two sentences as unduly lenient under section 36 of the Criminal Justice Act 1988. Jake Tomney, aged 16 when sentenced, received concurrent two-year supervision orders with an intensive supervision and surveillance programme for two robberies. Simon Tomney, aged 19, received a 12-month community order and 80 hours’ unpaid work for one of those robberies.

Both offences were night-time group robberies involving substantial violence, including kicks and stamps to the victims’ heads. The Recorder had imposed non-custodial sentences despite the seriousness of the offending. The common issue was whether those sentences were unduly lenient and, if so, what orders the court should make.

1. The court granted leave on both references and held that each sentence was unduly lenient. The seriousness of the group robberies, the targeted violence to the victims’ heads, the injuries and the circumstances of the attacks meant that a custodial sentence was almost inevitable.

2. The court applied the guidance in Attorney-General’s Reference Nos 4 and 7 of 2002, Lobban & Ors [2002] 2 Crim App R (S) 345. Custody is the usual and necessary response to robberies of this kind unless exceptional circumstances exist. Youth and antecedents affect the length of sentence, rather than displacing the custodial starting point.

3. Jake Tomney’s supervision orders were quashed. Despite his age, early guilty pleas, difficult upbringing, remand time and some work under the programme, his two serious robberies and subsequent offending required custody. A 12-month detention and training order was substituted, consecutive to the eight-month detention and training order then being served.

4. Simon Tomney also ought originally to have received custody. The court nevertheless exercised its discretion not to interfere. He had been of previous good character, had made progress under supervision, appeared to comply with the community-service requirement, and time had passed. No order was made in his case.

• Court of Appeal (Criminal Division)— On references under section 36 of the Criminal Justice Act 1988, the court held both sentences unduly lenient. It substituted a consecutive 12-month detention and training order for Jake Tomney, but made no order in respect of Simon Tomney.

• Recorder— On 10 October 2006, imposed concurrent two-year supervision orders with an intensive supervision and surveillance programme on Jake Tomney, and a 12-month community order with 80 hours’ unpaid work on Simon Tomney.