Sawdon, R v

A deferred sentence is a sentence for the purposes of section 36 of the Criminal Justice Act 1988 and may be referred as unduly lenient. Deferred sentencing remains exceptional. It is appropriate only where the statutory conditions are met and there is a proper and realistic prospect that compliance with clear, measurable requirements will justify a different sentence at the end of the period.

In assessing whether deferral is unduly lenient, the court must first assess the guideline sentence, including culpability, harm, aggravation, mitigation and guilty-plea credit. A deferred sentence may be within the proper range where a suspended custodial sentence is a realistic alternative. This conclusion does not broaden the availability of deferred sentences.

The Solicitor General referred as unduly lenient a six-month deferred sentence imposed at Grimsby Crown Court for robbery. The offender had threatened customers and shop staff with a packaged comb which they initially believed to be a knife, demanded money, assaulted the shop manager and took £160.

The sentencing judge assessed the offence at a starting point of four years’ imprisonment but deferred sentence on conditions concerning offending, drug use, compensation and mental-health issues. The reference was made under section 36 of the Criminal Justice Act 1988. The central issue was whether, notwithstanding the seriousness of the robbery, the offender fell within the narrow class for whom deferred sentencing was properly available.

1. Reference dismissed. The court granted leave to refer the sentence but declined to interfere. A deferred sentence is a sentence for section 36 of the Criminal Justice Act 1988, so it may be challenged as unduly lenient. The court followed Attorney General’s Reference (No 22 of 1992) (Thomas), [1993] 14 Cr.App.R.(S.) 435, on that point.

2. The robbery fell within medium culpability B and category 2 harm under the robbery guideline. The offender produced an apparent weapon and threatened violence. Although no victim sustained serious physical injury, the threats, assault and fear caused were more than minimal harm. The starting point was four years’ imprisonment, with a range of three to six years.

3. There were material aggravating features: three victims, threats with what was initially believed to be a knife, an assault which procured the cash, and offending under the influence of drugs. Mitigation included the absence of convictions, the offender’s mental condition, the impulsive character of the offence and efforts to address drug use. The judge was entitled, on the unusual facts, to adopt a three-year starting point before credit. A full one-third credit for the guilty plea was available because the delayed plea resulted from concern about fitness to plead.

4. The power in section 1 of the Powers of Criminal Courts (Sentencing) Act 2000 is confined by the interests-of-justice condition. The sentencing guidance limits deferral to a small group of cases around the custody or community threshold, where compliance may justify a different sentence. Following Attorney General’s Reference (No 101 of 2006) (P), [2006] EWCA Crim 3335, a deferred sentence required a proper and realistic prospect of a non-custodial outcome.

5. Here the judge could properly regard a two-year suspended sentence as realistic. It was therefore open to him to defer sentence on the stated terms in the interests of justice. The conditions were sufficiently clear, although such conditions would normally be expected to appear in a pre-sentence report. The decision turned on unusual circumstances and did not extend the general availability of deferred sentences.

1. Court of Appeal (Criminal Division): In [2018] EWCA Crim 1174, granted the Solicitor General leave to refer the deferred sentence as unduly lenient, but declined to interfere.

2. Grimsby Crown Court: On 19 January 2018, deferred sentence for six months following a guilty plea to robbery, subject to conditions concerning further offending, cannabis use, compensation and the offender’s ability to undertake a community requirement.