Murray, Re Attorney General's Reference No 29 of 2009

Aggravated burglary involving a masked and armed entry into an occupied home, with intent to cause grievous bodily harm, ordinarily requires a substantial immediate custodial sentence. The absence of violence inside the house carries limited weight where connected violence follows shortly afterwards.

Good character, remorse and an isolated lapse may mitigate sentence, but cannot make a suspended sentence adequate for grave, premeditated offending. Where guilty pleas are entered only on the trial date after earlier, unacceptable offers, the appropriate reduction may be limited to 20 to 25 per cent. On substituting an unduly lenient sentence, the court may also allow for double jeopardy and compliance with the original community order.

The Attorney General referred the offender's sentence under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty to aggravated burglary, charged with intent to cause grievous bodily harm, and unlawful wounding.

The offending followed a confrontation with the intended victim. The offender returned with others, armed and masked, entered a neighbour's occupied house by mistake, and shortly afterwards struck the intended victim on the head with a baseball bat. The Crown Court at Manchester imposed concurrent sentences totalling 52 weeks' imprisonment, suspended for two years, with unpaid work and a curfew.

The central question was whether that suspended sentence was unduly lenient despite the offender's previous good character, remorse, guilty pleas and the favourable pre-sentence report.

1. The court granted leave and held that the original sentences were unduly lenient. It quashed them and substituted an immediate custodial sentence.

2. The aggravated burglary was grave. The offender had returned after an earlier confrontation, was masked and armed, entered an occupied home with an accomplice, and intended to cause grievous bodily harm. The court gave little weight to the fact that no violence occurred inside that home. The wounding occurred moments later in the same sequence of offending, when the offender used a baseball bat to inflict a significant head injury.

3. Previous good character, genuine remorse and the unusual nature of the conduct were substantial mitigation. However, they did not outweigh the gravity and totality of the two offences. A trial starting point of six years' imprisonment for the aggravated burglary was appropriate.

4. The offender was not entitled to full credit for his guilty pleas. He had initially offered pleas that did not admit the intent required for aggravated burglary, and the accepted pleas were entered on the trial date. A discount of 20 to 25 per cent reduced the aggravated-burglary sentence to four and a half years.

5. Allowing further for double jeopardy and the offender's compliance with the suspended sentence requirements, the least proper substituted sentence was three years and six months for aggravated burglary. A concurrent sentence of two years was imposed for unlawful wounding. The 92 days spent on remand were to count, and the offender was directed to surrender within 48 hours.

• Court of Appeal (Criminal Division)—on an Attorney-General's reference under section 36 of the Criminal Justice Act 1988, granted leave, found the sentence unduly lenient, and substituted immediate custodial sentences: [2009] EWCA Crim 2169.
• Crown Court at Manchester—sentenced the offender to a total of 52 weeks' imprisonment, suspended for two years, with 300 hours' unpaid work and a six-month curfew.