Attorney Generals Ref No 22 of 2008

A non-custodial sentence for a serious attempted robbery involving a weapon, group violence and a vulnerable victim may be unduly lenient. The sentencing court must address the applicable custodial range, material aggravating features and any basis for departing from it. Youth affects the appropriate length of detention but does not ordinarily displace custody for robbery of this gravity.

On an Attorney General’s reference, where a community sentence is increased to detention, proper allowance must be made for double jeopardy, especially if the offender has already served part of the non-custodial sentence. Delay before sentence may also mitigate the term ultimately imposed.

The offender, aged 17 when the offence was committed, pleaded guilty to attempted robbery. He sprayed the victim with CS gas at a cashpoint, then punched and kicked him while he was on the ground. A co-offender was present.

The Crown Court at Bristol imposed a community order with supervision and 100 hours’ unpaid work. Sentencing had been delayed while the co-offender’s fitness to stand trial and involvement were determined. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.

The central issue was whether the community order properly reflected the seriousness of the attempted robbery and, if not, what custodial term should follow after allowing for youth, delay and double jeopardy.

1. The court granted leave and held that the community order was unduly lenient. It increased the sentence to two years’ detention in a young offender institution.

2. The sentencing judge had identified that an immediate custodial term would ordinarily follow a guilty plea, but gave no reason for imposing a non-custodial sentence. The judge also failed to address the significant aggravating features: the CS gas canister, the joint attack, repeated spraying, the assault on the victim while prone, and the night-time setting.

3. The applicable guideline range for a young offender was one to six years’ detention, with a starting point of three years. The court considered that the aggravating features required a starting point above three years before credit for the plea. It applied the robust custodial policy for serious robbery described in Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr.App.R (S) 77. The distinction between a mobile telephone and a bank card did not reduce the need for deterrent sentencing.

4. A sentence of three years’ detention would have been appropriate after the guilty plea. However, the offender’s youth, the delay before sentence, and the need to avoid double jeopardy required a substantial reduction. Applying the approach in Attorney General's References No 150 and 151 of 2002 [2003] 2 Cr.App.R (S) 658, the court imposed two years’ detention. The offender was directed to surrender to Trinity Road Police Station by 1 pm the following day; the sentence would begin on surrender, with two days’ prior detention credited.

• Court of Appeal (Criminal Division) — on the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, granted leave and increased the sentence: [2008] EWCA Crim 1516.
• Crown Court at Bristol — imposed a community order with supervision and 100 hours’ unpaid work for attempted robbery on 27 March 2008.