Gregson, Re (Rev 1)

A court must ordinarily follow the applicable sentencing guideline. Departure is permitted only where following it would be contrary to the interests of justice, and that will be rare. Service-related trauma does not itself require leniency, but its demonstrated connection with the offence may properly be material when sentencing.

A community order must contain a punitive requirement, a fine, or both, unless the statutory exceptional-circumstances exception applies. A community order without either is unlawful and unduly lenient. Temporary practical difficulty in providing unpaid work does not prevent the court from imposing that requirement for completion when work becomes available.

John Gregson was convicted at the Crown Court at Birmingham of wounding with intent, contrary to section 18 of the Offences against the Persons Act 1861. During a drunken fight with a long-standing friend, he struck the victim once on the head with an intact bottle. The victim sustained a scalp laceration and minor associated injuries.

The sentencing judge imposed a three-year community order with rehabilitation and alcohol-treatment requirements. The judge departed from the sentencing guideline because of the respondent’s service-related trauma, alcohol misuse, lack of previous violence, delay, and subsequent good conduct. The Attorney General referred the sentence as unduly lenient. The issues were whether departure from the guideline was justified and whether the community order was unlawful because it contained no punitive element.

1. The Attorney General’s reference was allowed. The original community order was unlawful because it contained neither a punitive requirement nor a fine. It was therefore unduly lenient and was quashed.
2. The judge had taken a principled approach to the sentencing guideline. Having concluded that its custodial starting point could not properly be suspended, he did not artificially reduce the sentence to permit suspension. Although he did not expressly refer to the interests-of-justice test in his final remarks, the sentencing hearing as a whole showed that he had departed from the guideline to achieve a just sentence.
3. It was very rare for adherence to a sentencing guideline to be contrary to the interests of justice. Military service, including service in difficult conditions, did not automatically justify leniency. Here, however, the judge could properly give significant weight to the respondent’s trauma from service in Afghanistan, its accepted connection with the offence, alcohol dependency, absence of prior violence, delay, and progress since the offence. He was not wrong to conclude that immediate imprisonment would be unjust on these particular facts.
4. Section 177(2A) of the Criminal Justice Act 2003 required a community order to include punishment, a fine, or both. The exceptional-circumstances exception in section 177(2B) was not established. The court rejected the absence of available unpaid work during the Covid-19 pandemic as a reason to omit a punitive requirement: unpaid work could have been ordered for completion within 12 months when provision became available.
5. The court substituted a three-year community order, running from the original sentencing date, with a 30-day rehabilitation activity requirement, 200 hours’ unpaid work, and a 12-month alcohol-treatment requirement.

• Court of Appeal (Criminal Division). On an Attorney General reference under section 36 of the Criminal Justice Act 1988, the court granted leave, quashed the unlawful community order and substituted a new community order: [2020] EWCA Crim 1529.
• Crown Court at Birmingham. On 27 August 2020, following conviction for wounding with intent, the judge imposed a three-year community order with rehabilitation and alcohol-treatment requirements but no punitive requirement or fine.