Attorney General Reference No 95 of 2007

Where a sentencing judge has failed to consider the statutory dangerousness provisions, the Court of Appeal may, on an Attorney General’s reference, make that determination itself and replace an unduly lenient determinate sentence with detention for public protection. A finding of dangerousness was compelled where the offender’s escalating violent record, conduct in the index offence, attitude to offending and alcohol misuse showed a high risk of serious harm from further violent specified offences under the Criminal Justice Act 2003.

The specified period must reflect the notional determinate sentence for all offences being sentenced, while allowing for the procedural fact that the offender is being sentenced again for the same offending.

The offender, aged 18 at the time, pleaded guilty to wounding with intent to do grievous bodily harm and burglary. At the Crown Court at Manchester he received four years’ detention in a Young Offender Institution for the wounding and six months’ concurrent detention for burglary.

The wounding arose from a sustained group attack. The offender used a deliberately broken bottle to stab the victim repeatedly and then thrust it into his eye, causing the loss of that eye and almost total blindness. The Attorney General referred the sentence as unduly lenient, contending that the sentencing judge had failed to consider the dangerousness provisions of the Criminal Justice Act 2003.

1. The court granted leave and held that the total sentence of four years was unduly lenient. The seriousness of the wounding, the deliberately adapted weapon, the sustained group attack, the victim’s catastrophic injuries and the burglary’s aggravating features made that conclusion inevitable.

2. The Crown Court had failed to consider sections 224 to 229 of the Criminal Justice Act 2003. It was common ground that the Court of Appeal could itself make the statutory determination and impose detention for public protection.

3. The offender was dangerous within the statutory scheme. His escalating record, aggressive offending, poor attitude to offending and alcohol misuse, and the extreme violence displayed in the attack established a high risk that members of the public would suffer serious harm through further violent specified offences. The victim’s prior conduct and the circumstances in which the confrontation began did not justify or materially mitigate the attack.

4. The court imposed a term of detention for public protection. It fixed the relevant specified period at four and a half years, reflecting both offences and the fact that the offender was being sentenced for them a second time. He received credit for 150 days in custody. No separate penalty was imposed for the burglary because it had been reflected in the specified period.

• Court of Appeal (Criminal Division) — granted the Attorney General leave to refer the sentence under Criminal Justice Act 1988, held it unduly lenient, and imposed detention for public protection.
• Crown Court at Manchester — on 3 August 2007 imposed four years’ detention in a Young Offender Institution for wounding with intent and six months’ concurrent detention for burglary.