Practice and Procedure


PUBLISHED November 5, 2003

Although the offender's sentence of two years' detention in a young offenders' institution had been unduly lenient, the sentence would not be disturbed having regard to the clear and open indication given by the trial judge to the offender on which he had relied to give a guilty plea.Application by the Attorney-General under s.36 Criminal Justice Act 1988 to refer to the court a sentence passed in respect of an offence under s.118 Offences Against the Person Act 1861 as unduly lenient. The offender ('C') was 18 years old at the time of the offence. In April 2003, C attacked and wounded the victim by biting off a large part of his ear lobe. C pleaded guilty late in the trial to unlawfully and maliciously wounding the victim with intent to do him grievous bodily harm and was sentenced to two years' detention in a young offenders' institution. An earlier sentence, imposing a 220 hour community punishment order ('CPO') for offences of assaulting a police officer, threatening behaviour and criminal damage, was revoked when the new sentence was imposed. Before the jury had been sworn, C's counsel had sought an indication from the recorder in open court as to whether C would be a long-term prisoner if he pleaded guilty. The recorder mistakenly indicated that if C pleaded guilty he would be sentenced to 18 months. Counsel for the crown was unhappy with the indication and brought it to the recorder's attention. The recorder, recognising his mistake, indicated in open court that for a guilty plea a sentence of two years in a young offenders' institution would be imposed. Counsel for the Crown indicated that if such a sentence were passed he would seek an Attorney-General's reference. A major aggravating feature was that C had 22 convictions recorded against him for various offences including wounding and assault occasioning actual bodily harm under the 1861 Act, assaulting a police officer and affray. In passing sentence the judge noted C's bad record and the fact that C had started the fight in the street. The Attorney-General submitted that: (i) the judge ought to have taken the view that C represented a danger to the public; (ii) the sentence ought to have reflected that risk; and (iii) the comments in a pre-sentence report that the risk of C's re-offending was medium and that he needed to undertake intensive work on his poor thinking skills, use of alcohol and anger management supported a longer sentence.HELD: (1) The aggravating factors present were that: (a) C had committed an unprovoked attack; (b) C had bitten his victim in a manner that had been compared to the use of pincers as a weapon; (c) C had a bad criminal record; and (d) the offence occurred during the currency of a CPO. (2) The appropriate sentence for the offence would have been four years and six months upon conviction with a discount for the late plea of no more than one year. (3) The lowest appropriate sentence would have been one of three years and six months in a young offenders' institution. (4) However because C had received an open and clear indication of the sentence and because he had been influenced by it to plead guilty, the sentence imposed would not be disturbed. (5) Although counsel for the prosecution had contributed to the dialogue, this unusual feature did not make it appropriate for the court to increase the sentence.Application dismissed.

[2003] EWCA Crim 3010