Attorney General's Reference No. 8 of 2007

On a reference under section 36 of the Criminal Justice Act 1988, the question is whether a sentence is unduly lenient, not merely lenient. A substantial departure from sentencing guidelines does not by itself justify intervention. A judge must impose the sentence considered appropriate without being deterred by concern that the Attorney General may make a reference. Departure may be justified where the offending is less serious than the norm or where personal mitigation is especially powerful. A suspended custodial sentence was properly left undisturbed where the offender’s involvement was peripheral, she was under the influence of an older co-offender, and the mitigation and low risk of reoffending were compelling.

The offender, aged 18, was convicted in the Crown Court at Lincoln of possessing cannabis and cocaine with intent to supply. Her older co-defendant, with whom she lived, received a total sentence of ten years’ imprisonment.

The sentencing judge initially imposed immediate detention, but recalled the offender and substituted concurrent suspended detention orders with unpaid work and supervision. The Attorney General obtained leave to refer the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the judge’s substantial leniency was justified notwithstanding the usual sentencing approach to possession of drugs with intent to supply.

1. The court granted leave but left the sentence undisturbed. The Attorney General’s reference did not establish that the final suspended sentence was unduly lenient.

2. The relevant threshold under section 36 of the Criminal Justice Act 1988 is undue leniency. Sentencing guidelines require careful regard, but remain guidelines. A substantial departure from them does not alone warrant an Attorney General’s intervention. Leniency justified by the facts should be commended.

3. A judge must administer the sentence considered appropriate without fear that it may prompt a reference. Departure from guidelines may properly reflect offending which is less serious than the norm or particularly powerful personal mitigation.

4. The trial judge was entitled to regard the offender’s role as peripheral. He was entitled to find that she was wholly under the influence of a substantially older and manipulative co-defendant. She had no relevant convictions, did not appear to share the proceeds of drug dealing, had employment and educational prospects, and presented a low risk of reoffending.

5. Those circumstances justified a custodial sentence suspended for two years, with unpaid work and supervision. The sentence marked the gravity of the offences while recognising that immediate detention was unnecessary.

• Court of Appeal (Criminal Division): Leave was granted on the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, but the sentence was left undisturbed.
• Crown Court at Lincoln: The offender was convicted of possessing cannabis and cocaine with intent to supply. The final sentence comprised concurrent suspended detention orders, unpaid work and supervision.