Nguyen, R. v

A sentence may be varied or rescinded under section 155 only within the statutory 56-day period and by a court constituted as it was when the sentence was imposed. The period cannot be extended. A purported re-sentence outside those limits is without jurisdiction.

On an Attorney General’s reference under the Criminal Justice Act 1988, whether a sentence was unduly lenient is decided on the material before the sentencing judge. Once that sentence is quashed, however, the Court of Appeal must impose the appropriate sentence on up-to-date information, whether favourable or adverse to the offender.

The offender pleaded guilty at Kingston-upon-Thames Crown Court to attempting to cause grievous bodily harm with intent and possessing an offensive weapon. He initially received consecutive sentences totalling four years and four months’ imprisonment.

The prosecution later sought to invoke section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. The original judge purported to rescind the sentence after the 56-day period and imposed an extended sentence of seven years’ custody with a four-year extension. The offender sought to appeal that sentence, while the Solicitor General’s reference alleging undue leniency remained before the court.

The issues were whether the later Crown Court sentence was valid, the material available on a reference under section 36 of the Criminal Justice Act 1988, and the appropriate sentence for the original offending.

1. The Attorney General’s reference succeeded. The purported Crown Court re-sentence was without jurisdiction. Under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, the sentence had to be reconsidered and rescinded within 56 days by a court constituted as the original sentencing court. Neither section 155 nor rule 42.4 of the Criminal Procedure Rules 2014 extended that period. The valid sentence therefore remained the original total of four years and four months.
2. Under section 36 of the Criminal Justice Act 1988, the court first had to decide whether that original sentence was unduly lenient by reference only to material before the sentencing judge. It could not use later adverse evidence at that stage. Once it found undue leniency and quashed the sentence, section 36 required it to impose the appropriate sentence for the case. That exercise could, and should, use all available up-to-date information, including material adverse to the offender.
3. The original sentence was unduly lenient on the original material alone. The offending involved substantial premeditation, disguise, a weapon, an intended serious assault on a lone victim at night, and a further armed incident. The appropriate starting point for the attempted grievous bodily harm offence was at least seven and a half to eight years before mitigation. A sentence of at least four and a half years on that count was warranted.
4. The sentencing judge had also erred in thinking that an extended sentence was unavailable. For section 226A of the Criminal Justice Act 2003, the aggregate custodial term for all offences had to be considered. A total of four years or more permitted an extended sentence, with the aggregate term imposed on one count and concurrent terms on the others.
5. Later material confirmed that the victim had been targeted and that the offender had not shown the remorse originally accepted. The court upheld the dangerousness assessment and imposed seven years’ imprisonment with a four-year extension, together with two years’ imprisonment concurrent for the weapon offence.

• Court of Appeal (Criminal Division) — on the Solicitor General’s reference under section 36, the court held that the original sentence was unduly lenient, quashed it, and imposed an extended sentence: [2016] EWCA Crim 448.
• Crown Court at Kingston-upon-Thames — imposed an original total sentence of four years and four months. The original judge later purported to rescind that sentence and impose an extended sentence, but the Court of Appeal held that the later proceedings were outside the section 155 time limit and without jurisdiction.