Practice and Procedure


PUBLISHED March 11, 2003

A sentence with no element of custody for firearm offences would have been unduly lenient, however, in the circumstances a Community Rehabilitation Order was not unduly lenient as the defendant had already served a period of custody whilst on remand. The sentence passed was in the public interest.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 5 November 2002 at Reading Crown Court before HH Judge Compston the defendant ('S') pleaded guilty to possession of a firearm with intent to cause fear or violence. On 6 December 2002 HH Judge Lait sentenced S to a 12 month Community Rehabilitation Order. On 3 August 2002, four women were walking to the station when a car drove slowly past them. S leant out of the window with a handgun that he pointed in the direction of the women. One of the women said she heard a bang and felt something hit her head. As she was uninjured she thought that the gun was not real. The women said that S fired the gun again and they heard pellets hit the ground. The prosecution accepted a basis of plea put forward by S that he had not discharged the gun. The basis of plea was accepted with the endorsement that, whilst the prosecution did not accept that the gun had not been discharged, it was not in the public interest to pursue it. When passing sentence the judge referred to the very serious nature of the offence and stated that it clearly justified a custodial sentence. However, as S had been held on remand for three months and, whilst on remand, had begun addressing underlying drink problems, it would not be in his or the public's interest to pass a further period of custody. A Community Rehabilitation Order would enable S to receive support from the probation services and assistance to continue with help to overcome his alcohol problems. The Attorney-General referred the sentence as unduly lenient given the aggravating factors that: (i) the offence was carried out whilst S was on bail for offences of violence and the terms of the bail precluded him from going out at night and excluded him from the area where the offence took place; (ii) the gun was used to scare more than once; (iii) it was a real gun and was loaded; and (iv) S had a number of previous convictions for violence and for possession of an air-rifle in a public place. The mitigating factors were the plea of guilty and his young age.HELD: (1) Granting leave for the Attorney-General to refer a sentence was normally a formality, however, the court was not just here to rubber stamp applications. When Parliament granted power to the Attorney-General to refer sentences it built in a number of safeguards. The Attorney-General had to conclude the sentence was unduly lenient and he was then required to exercise his discretion of whether to refer that sentence. It was therefore essential that the Attorney-General should demonstrate that he had taken all matters into account before referring the sentence. (2) The sentencing judge gave very detailed reasons why he passed what he described as a lenient sentence. He believed that the sentence was a sentence in the public's interest. Those factors do not appear in the reference and that was a deficiency. However, as this case involved a firearm the court would grant leave to refer. (3) A sentence of 12 months in these circumstances, whilst lenient, would not have been unduly lenient. As the judge had to deal with the matter on the basis of the plea, the sentence could not be any longer. A sentence of 12 months would have the effect of returning S to prison for a very short period given that he had spent three months in custody on remand. S would then be released with very little support and guidance. The imposition of a Community Rehabilitation Order meant that S would continue to have help and support to address his problems. (4) A Community Rehabilitation Order was not a soft option. If the judge had passed a sentence with no custodial element it would have been unduly lenient. In all the circumstances, the sentence passed was not unduly lenient. (5) Parliament was presently considering whether to give judges the option of passing sentences described as "custody plus". That was similar to what the sentencing judge had done and he was entitled to reach that conclusion.