R v Luke Pollard

A Goodyear indication should be given only on a reliable factual basis and with material necessary to assess the maximum sentence, including relevant victim-impact evidence. Mitigation should be considered at sentence, not when the maximum sentence is indicated. Where material information is missing, the indication may be unsafe and the judge should decline to give it. On an Attorney General’s reference, the court may recognise an offender’s reliance on a defective indication as a fairness consideration. That may justify replacing an unduly lenient suspended sentence with an immediate sentence lower than the sentence properly required by the offending.

Following guilty pleas entered on the first day of trial, the Crown Court at Nottingham imposed concurrent two-year sentences, suspended for two years, for controlling and coercive behaviour and inflicting grievous bodily harm. The offences arose from prolonged domestic abuse, culminating in an assault which fractured the victim’s arm. The Attorney General referred the sentences under section 36 of the Criminal Justice Act 1988, contending that the proper sentence after credit for the late pleas was about 32 months and could not be suspended.

The central issues were whether the sentences were unduly lenient, what procedural significance should be given to the judge’s earlier Goodyear indication of a sentence not exceeding two years, and what sentence this court should impose.

1. Reference and sentence. Leave to refer was granted. The concurrent two-year suspended sentences were unduly lenient. Leaving the Goodyear indication aside, a sentence of about 32 months was the least sentence that should have been imposed, having regard to the guideline classification, the aggravating and mitigating features, and the late guilty pleas.
2. Goodyear procedure. A sentence indication should be sought and given on the basis required by the Criminal Procedure Rules and Criminal Practice Direction. The judge should have a written application and an agreed factual basis, and must be supplied with everything necessary to assess the maximum sentence. Mitigation should not be heard or factored into the maximum sentence indicated. The indication in this case was procedurally flawed because there was no written agreed factual basis and important victim-impact material concerning the victim and child was unavailable. In those circumstances it was unsafe and unwise to give the indication.
3. Sentencing assessment. The prolonged controlling and coercive behaviour, its serious effect on the victim and children, and the offender’s relevant previous conviction supported the higher sentencing assessment. The court accepted the Solicitor General’s approach to the guideline classification and the balancing of aggravating and mitigating features.
4. Fairness and remedy. Although the offender knew that a reference was possible and had not been promised that imprisonment would be avoided, the court considered it fair to give limited effect to the indication because he had relied on it, had performed some unpaid work, and had responded well to the suspended sentence order. The sentences were quashed and replaced with concurrent two-year immediate terms. The requirements attached to the suspended sentence order fell away; the restraining order and other unaffected orders remained in force. The offender was required to surrender to Ripley Police Station by 4 pm that day.

• Crown Court at Nottingham: concurrent two-year terms of imprisonment suspended for two years were imposed for controlling and coercive behaviour and inflicting grievous bodily harm, with programme and unpaid-work requirements and a restraining order.
• Court of Appeal (Criminal Division): on the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted. The sentences were quashed and replaced by concurrent immediate two-year terms. The restraining order and other unaffected orders stood.