Attorney Generals Reference No 36 OF 2011

For a premeditated attack causing grievous bodily harm with intent, the applicable adult sentencing-guideline starting point may be five years’ custody rather than the lower category adopted at sentence. Where Powers of Criminal Courts Act 2000 section 91 applies, a hypothetical possibility that youth-court jurisdiction might earlier have been retained does not displace the conclusion that the case should be sentenced in the Crown Court. In revising an unduly lenient sentence, the court must balance the offender’s youth, plea, admissions, remorse and good character against the gravity and aggravating features of the violence.

The Attorney General referred, as unduly lenient, a sentence of 15 months’ detention in a young offender institution imposed in the Crown Court at Plymouth on 21 April 2011. The offender, aged 17 when the offence was committed and nearly 18 when sentenced, had pleaded guilty to causing grievous bodily harm with intent under section 18 of the Offences Against the Person Act 1861.

After following the victim from a public house, the offender attacked him from behind in a dark park. He repeatedly punched him, kicked him in the face and stamped on his head while wearing hard-soled shoes. The Attorney General contended that the sentencing judge had selected the wrong guideline category. The offender relied on his age, admissions, guilty plea, remorse and good character, and argued that charging delay might have permitted youth-court jurisdiction.

1. The Attorney General’s reference succeeded. The sentence of 15 months’ detention in a young offender institution was unduly lenient. The court substituted a sentence of two years and six months’ detention in a young offender institution.
2. The sentencing judge had adopted the wrong guideline category. For an adult, the proper starting point was five years’ custody because the injury resulted from a premeditated attack. The attack was planned, made from behind and without warning, and involved kicks and repeated stamps to the victim’s head with a shod foot. It therefore fell within the third, rather than fourth, category of the relevant sentencing guidance.
3. The court rejected the submission that charging delay could materially reduce the appropriate sentence because the offender might have appeared before a youth court. R v Gafoor [2002] EWCA Crim 1857 did not govern this case. Unlike Gafoor, this was a case to which section 91 of the Powers of Criminal Courts Act 2000 applied. It was inconceivable, given the proper adult starting point, that magistrates would have retained jurisdiction. The case always should have been committed to the Crown Court for sentence.
4. The offender’s age, his frank admissions, early guilty plea, genuine remorse and effective good character justified substantial mitigation. The court also recognised aggravation in the use of the shod foot as a weapon and in the gross violence inflicted on the victim’s head. Balancing those matters, and taking account of the imminent release date under the original sentence, the least proper sentence was two years and six months.

• Court of Appeal (Criminal Division): on a reference under section 36 of the Criminal Justice Act 1988, held that the sentence was unduly lenient and increased it to two years and six months’ detention in a young offender institution.
• Crown Court at Plymouth: following a guilty plea to causing grievous bodily harm with intent, imposed 15 months’ detention in a young offender institution on 21 April 2011.