Tremayne, R. v

Personal mitigation and prospects of rehabilitation can be important in sentencing, but they cannot justify a departure from the applicable guideline range where a non-custodial sentence fails to provide just and proportionate punishment for a grave offence, particularly one committed against a vulnerable victim. In assessing culpability under the street robbery guideline, the court must balance features falling within different levels. Biting may amount to the use of a weapon, but an allegation of very significant force requires an evidential basis.

The Solicitor General referred the offender’s sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty at the Crown Court at Taunton to assault with intent to rob a vulnerable man. The assault involved pursuit, violence, demands for money and the biting off of part of the victim’s ear.

The sentencing judge had indicated a maximum custodial term of three years and four months following a late guilty plea, but instead imposed a community order because of the offender’s rehabilitation, mental health difficulties and caring responsibilities. The central issue was whether that exceptional departure from custody was unduly lenient.

1. The reference was allowed. The court held that the community order was unduly lenient. It quashed the sentence in all respects and substituted 40 months’ imprisonment, with a £170 statutory surcharge.
2. The Sentencing Council’s street robbery guideline was relevant despite the absence of an offence-specific guideline. Where features fall within different culpability levels, the court must balance them fairly. Biting could properly be treated as use of a weapon, but there was no evidential basis for treating the force used as very significant. The sentencing judge was therefore entitled to assess culpability at category B. The harm lay between categories 1 and 2, and a sentence of five years’ imprisonment before guilty-plea credit would have been open.
3. The court accepted that the offender’s personal mitigation was substantial and that rehabilitation was important. However, the judge had overstated the extent to which the offender had remained out of trouble. He had been recalled to prison and had reoffended when at liberty. His continued denial of the offence until the trial date also weakened the assertion that he had demonstrated reform.
4. A custodial sentence would be difficult for the offender and his partner, but support could be available on release. Those considerations could not outweigh the need for appropriate punishment for a very serious offence against a highly vulnerable victim, committed while the offender was on licence. The non-custodial sentence was inadequate to reflect the offence’s seriousness and to provide just and proportionate punishment.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, quashed it and substituted 40 months’ imprisonment.
• Crown Court at Taunton: Following a guilty plea to assault with intent to rob, imposed a two-year community order with unpaid work and a rehabilitation activity requirement, plus compensation.