Attorney General Reference No 45 OF 2009

A deferred-sentence order imposing terms is a sentence for the Attorney General’s reference jurisdiction under section 36 of the Criminal Justice Act 1988.

Although a disposal may be conspicuously lenient, intervention is not required where reliable subsequent evidence shows a genuine and material change in the offender’s conduct. The court must balance the public interest in tariff sentencing against the public interest in reinforcing rehabilitation that is likely to protect the public. An unusually lenient deferred sentence may therefore stand where disturbing it would undermine that progress.

The Attorney General sought leave to refer, under section 36 of the Criminal Justice Act 1988, an order made at Worcester Crown Court on 16 April 2009 deferring Gavin Barratt’s sentence for six months on conditions including probation supervision, exclusion from licensed premises in Hereford and unpaid work.

Barratt had pleaded guilty to violent offences on two occasions, including an assault on a 15-year-old and assaults upon three people while on bail. His offending history, repeated non-compliance with community orders, drink and drug misuse, and the seriousness of the injuries made the disposal appear unusually lenient. A recent probation report, however, recorded sustained compliance and a substantial change in attitude. The central issue was whether the order was unduly lenient and, if so, whether the public interest nevertheless required it to remain in place.

1. The court granted the Attorney General leave to refer the order. A deferred-sentence order on terms was a sentence for the purposes of section 36 of the Criminal Justice Act 1988. Longstanding authority established that, if the offender complied with those terms, a later custodial sentence would be wrong in principle. The Attorney General could therefore challenge the order.

2. The court accepted that the order was lenient. Given the earlier assault, the later assaults committed while on bail, the racial abuse and the offender’s record, an immediate custodial sentence in the region of two years was likely if imprisonment had been imposed. The Crown Court judge had taken an unusual and substantial risk in deferring sentence.

3. Nevertheless, the court declined to interfere. The post-order probation report provided unusually strong and credible evidence that the offender had complied fully, worked well, attended voluntarily, remained sober when seen, recognised the harm he had caused and had changed his attitude. The court did not regard the possibility that fear of custody had contributed to that change as undermining its practical value.

4. Public protection was the decisive consideration. There was a public interest in an appropriate tariff sentence, but also a stronger present interest in maintaining the momentum of conduct that was likely to stop the offender from returning to violent and disorderly behaviour. Even if the original disposal had been unduly lenient, it would now be contrary to the public interest to undo it. The deferred-sentence order was left to stand.

• Court of Appeal (Criminal Division): on the Attorney General’s reference, the court granted leave but declined to interfere with the deferred-sentence order: [2009] EWCA Crim 1759.
• Crown Court at Worcester: on 16 April 2009, the judge deferred sentence for six months subject to conditions.