Attorney General's Reference No 85 of 2007

When fixing the notional determinate sentence for an indeterminate sentence, the court must reflect the full culpability and harm of the offending. A sentence appropriate for a single victim may be inadequate where a deliberate and extremely violent attack causes grave injury to two victims. Multiple victims are a material aggravating feature and must be reflected in the sentence.

On an Attorney-General reference, the court may increase the minimum term but should allow appropriate credit for the offender's double jeopardy in being resentenced.

The offender was convicted at Oxford Crown Court of two offences of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. After a fight outside a public house, he armed himself with an iron bar, pursued two men and attacked both of them. One sustained catastrophic and lasting brain injury; the other sustained serious brain injury.

The sentencing judge imposed imprisonment for public protection with a six-year minimum term, less time spent on remand. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988, contending that the notional determinate sentence did not sufficiently reflect the culpability, harm and the existence of two victims.

1. The Court granted the Attorney General leave to bring the reference and substituted a minimum term of seven years less time spent on remand.

2. The offending involved exceptionally high culpability. It was a premeditated revenge attack. The offender armed himself, found the victims, attacked them by surprise at night, used a metal bar and continued the attacks when they were on the ground. His previous convictions for violence and failure to respond to punishment added to the seriousness.

3. The harm was also exceptionally grave. Both victims suffered serious head injuries, and one was left with profound and continuing disabilities. Although a limited degree of provocation arose from the earlier fight, it did not materially mitigate an attack so far beyond any proportionate response.

4. A notional determinate sentence of about 12 years would have been appropriate had there been one victim. However, the court held that the presence of two victims, each seriously injured, had to be reflected in the sentence. Taking account of the limited mitigation, the appropriate notional determinate sentence was 15 years.

5. The minimum term was set marginally below half that period to allow credit for double jeopardy arising from the Attorney-General reference.

• Court of Appeal (Criminal Division) — allowed the Attorney-General's reference under section 36 of the Criminal Justice Act 1988 and substituted a seven-year minimum term, less time spent on remand.
• Oxford Crown Court — following convictions for two offences under section 18 of the Offences Against the Person Act 1861, imposed imprisonment for public protection with a six-year minimum term, less 313 days spent on remand.