Muthuraja, R. v

When sentencing an attempt, the court must assess the guideline category by reference to the harm intended or foreseeably risked if the offence had been completed, rather than merely the harm actually caused. This accords with Criminal Justice Act 2003, section 143(1), and the approach in R v Laverick [2015] 2 Cr App R(S) 62.

The resulting notional sentence must then be reduced to reflect the offence being an attempt. The reduction depends on all the circumstances. It will not be substantial where the offender has done all that was necessary to achieve the intended harm and completion failed only through good fortune.

On an Attorney General’s reference, a material sentencing error may justify departure from a prosecution concession below, although consequential unfairness to the offender may warrant a modest reduction.

The offender deliberately pushed an acquaintance from an Underground platform onto the track. The victim lost consciousness but, by good fortune, avoided the live rail and an approaching train. He sustained no lasting physical injury.

At the Central Criminal Court, the offender was convicted of attempting to cause grievous bodily harm with intent. The judge, accepting the parties’ submissions, treated the offence as a category 3 attempt under the relevant guideline and imposed three years’ imprisonment.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988, contending that the completed offence, assessed by the intended harm, fell within category 2 or category 1. The central issue was whether the three-year sentence was unduly lenient.

1. The court granted leave, quashed the three-year sentence as unduly lenient, and substituted five years’ imprisonment.

2. The judge and advocates below had made an error of law by treating the offence as an attempt to commit a category 3 offence according to the harm actually caused. The correct approach, set out in R v Laverick [2015] 2 Cr App R(S) 62, was first to determine the category and sentence for the completed offence by reference to the intended or foreseeable harm. That approach reflected section 143(1) of the Criminal Justice Act 2003.

3. The jury’s verdict established an intention to cause really serious injury. Pushing the victim onto the tracks created a high risk of contact with a live rail or an incoming train, with a high risk of very serious injury or death. The completed offence therefore involved greater harm. No higher-culpability factor was established: the relevant factors could not be used to duplicate the intended harm inherent in the attempted offence. The completed offence fell within category 2.

4. The court identified substantial aggravation, including some premeditation, intoxication, persistence despite restraint, the risk of death, and risk to rescuers. It also gave weight to the offender’s good character, remorse, positive references, youth and the absence of lasting injury. A completed offence would have attracted a sentence somewhat above the category 2 starting point.

5. The sentence then required a reduction because the offence was an attempt. The reduction could not be substantial because the offender had done all he could to cause the intended harm and the absence of grave injury was purely fortuitous. A modest further reduction was appropriate because the Attorney General’s reference departed from the prosecution’s sentencing concession below.

• Court of Appeal (Criminal Division): Granted the Attorney General leave to refer the sentence under section 36 of the Criminal Justice Act 1988; quashed the sentence as unduly lenient and substituted five years’ imprisonment.
• Central Criminal Court: On 24 July 2019, the offender was convicted of attempting to cause grievous bodily harm with intent and sentenced to three years’ imprisonment.