A community punishment and rehabilitation order was unduly lenient for an offence of attempted robbery, assault and criminal damage. Although in the circumstances a four-year sentence would have been appropriate, the court had to take into account the fact that it was sentencing for a second time and make a reduction accordingly.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988 as unduly lenient. On 9 August 2002 at Harrow Crown Court the defendant ('C') was convicted of assault occasioning actual bodily harm, attempted robbery and damaging property. On 17 September 2002 HH Judge Bailey sentenced C to a community punishment and rehabilitation order of 100 hours for each offence to run concurrently, with a supervision period of three years. On 4 September 2000 at 2.10am the victim ('V'), a mini-cab driver, stopped to use a pay phone. V saw a car pull up, C and another man ('D') got out and began shouting. The men demanded a cigarette from V, he refused and was pushed by C. D demanded money and C threatened to kill him, swinging a wine bottle he was holding and hitting V on the shoulder. V told them he had money in the car, he managed to get into the car but C got into the passenger seat. C brandished the bottle and demanded money. V managed to start the car and drove away before D could get in. C struck him on the head, V struggled with him and eventually managed to get the bottle and throw it out the window. C grabbed the steering wheel and punched V, he picked up a wheel brace and struck V with it. C continually threatened V during the assault. V managed to drive onto a petrol forecourt next to a police station. V was taken to hospital and C was arrested. C had obviously been drinking and after caution he told police "I do what I want I'm Somalian I rob when I want." In interview the following day C told police that D had been responsible for assaulting V with the bottle, he denied the attempted robbery saying he had got into the car to go to the police station with V and V attacked him. The sentencing judge recognised he was taking an unusual course and said the offences would usually merit a sentence of four years. The Attorney-General referred the sentence as unduly lenient given the following aggravating factors: (i) the attack was at night on a lone victim by two men; (ii) violence was threatened and actually used; (iii) the incident had lasted for a considerable period of time; (iv) it had been a terrifying experience for V; and (v) weapons had been used. The only mitigating factor was C's lack of previous convictions. He had not pleaded guilty and had continued to maintain his innocence. The sentencing judge had taken the unusual step of writing to the Court of Appeal to explain the sentence.HELD: (1) The sentence passed was unduly lenient. The court did not encourage communication from sentencing judges explaining the sentence passed. If an explanation was required it should appear in the transcript of the sentencing remarks and stated in open court. (2) There had to be regard to the fact that C was facing sentence for the second time and consideration should be given to all the anxiety and worry that brought. The court was not just increasing a sentence but converting a non-custodial sentence into a custodial one. (3) The judge was right to state that four years would be appropriate for an offence of attempted robbery. However, given the fact this would be a second sentence a sentence of two years imprisonment for the attempted robbery, one year for the assault and three months for the criminal damage, to run concurrent, would be substituted. C had to surrender to custody in seven days.Application allowed.

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