Practice and Procedure


PUBLISHED May 14, 2003

A sentence of 18 months for aggravated burglary with intent to inflict grievous bodily harm by a husband on his ex-wife was unduly lenient and a sentence of three and a half years would be substitutedApplication by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 11 October 2002 at Basildon Crown Court, before HH Judge Jones, the defendant ('J') pleaded guilty to theft of a mobile phone, common assault, aggravated burglary with intent to inflict GBH, dangerous driving and ABH. On 8 November 2002 J was sentenced to a total of 18 months imprisonment, disqualified from driving for three years and ordered to pay compensation of ?2,137.92. J married the victim, ('V') in September 1994 and had three children. The marriage had been a violent one and police were often called, although no proceedings were ever brought. V was frightened of J and moved out in May 2001, to live with her step-father. On 25 July 2002 J called V and said he wanted to talk to her about the children. Shortly before that call J had found out that their eldest daughter was not his child. V met with J in a pub car park. J asked to use her mobile phone, she refused to let him and he pulled her to the ground, straddled her, took her phone and drove off. V suffered a cut lip. At 2.45 am, V, who slept in the lounge, was woken by the sound of breaking glass. She saw J who had violently pushed open the living room door standing holding a curved fishing knife between five and seven inches long. J threatened to kill her for supposedly sleeping with his best friend. V's step-father and brother came downstairs and J punched the step-father twice. He went to call the police and J dragged V to the front door. Her dressing gown was ripped off, she was dragged outside wearing only her knickers and ordered into J's van. V's step-father drove his car across the drive to block J's exit, J repeatedly drove at the car smashing the door and trapping V's step-father inside. V escaped and ran inside the house. J caught her and slapped her head. When the police arrived they had to use CS gas to control J. In interview he admitted the events and said it was because V had been having an affair with his best friend. He had stolen the mobile phone to check what phone calls V had made and had taken the knife as he thought he might be outnumbered. He had drunk about 15 pints of larger. J was released from prison on 31 January 2003 under the tagging system and was tagged until 25 April 2003. The Attorney-General referred the sentence as unduly lenient given the aggravating factors of: (i) it was a burglary aggravated by the fact it was at night; (ii) J had bought a knife for the purpose of use as a weapon; (iii) he had made threats to kill; (iv) violence was used and V was clearly humiliated; (v) V was vulnerable; and (vi) J was drunk. In mitigation were J's plea of guilty and the fact that the physical injuries were minor. J contended that the court should take into account the fact that he found out the eldest daughter was not his, he thought V had had a relationship with his best friend, since release he had had contact with his children and was a loving father. The children were likely to be seriously affected if he was returned to custody.HELD: (1) It was clear that the total sentence, and in particular the 18 month sentence for the aggravated burglary, was unduly lenient even having regard to the mitigating factors. The sentence was but a fraction of what should have been imposed and a sentence of between five and six years would have been appropriate. (2) The problem here was not only double jeopardy but also the fact that J had been released some months before. However, despite those facts the court was satisfied that it had to indicate clearly that the sentence passed was too low. Taking into account the circumstances and the principle of double jeopardy, the court was satisfied that it was not necessary to make J a long term prisoner. The sentence of 18 months for the aggravated burglary would be quashed and a sentence of three and a half years would be substituted, with all the other sentences to run concurrently giving a total sentence of three and a half years imprisonment. That was the lowest sentence that could properly be imposed at this stage even having regard to all the circumstances.Leave to refer granted. Application allowed.

[2003] EWCA Crim 1619