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Attorney General’s power to refer sentence for being “unduly lenient”


Unduly Lenient?

If the Attorney General believes that a sentence is “unduly lenient”, or too soft as the newspapers may say, she can ask for the case to be referred back to court to be reconsidered.

This is what happened to Taha Amin. He pleaded guilty to several robberies and thefts and was sentenced to 23 months’ imprisonment, which was suspended for two years. Although the judge referred to imprisonment, this should have been expressed as detention due to his age.

Amin was 18 years old at the time of the offences and had not been in trouble before, before the sentencing hearing he had been remanded in custody for seven months. Conditions were attached to the suspended sentence that he complete a Thinking Skills Programme, abide by a tagged curfew for four months, complete 180 hours of unpaid work and undergo supervision with the probation service for two years.

It was submitted that the sentence was unduly lenient, and each offence was aggravated by the fact Amin had been acting as part of a group. However, it was acknowledged there was remorse, a lack of maturity or significant planning, and Amin had also made steps to break away from his friends in between the last of the offences and his arrest.

On behalf of Amin, the court was reminded of a recent court decision which indicated account could properly be taken of the effects Covid-19 had on conditions in custody. Amin had been locked in a cell for 23 ½ hours a day and had not received any family visits. It would also mean that if he did receive immediate custody, he would not be able to complete any rehabilitative courses.

The court agreed that the seriousness of the offences meant that a suspended sentence should not have been imposed. The view was taken that a sentence of 3 years detention would have been appropriate, even taking into account the mitigation. That length of sentence is one that is not capable of being suspended.

Having decided that the sentence was unduly lenient, the court then had to determine if the sentence needed to be varied. Even when a court decides a sentence is unduly lenient, it has a discretion to not to change the sentence.

Amin had used the time since his sentence wisely. Although only two months had passed, he had attended all required appointments, complied with his curfew and developed a good rapport with his offender manager. Probation provided a positive report confirming Amin was very motivated to engage with them. The fact that the conditions on his sentence were a significant restriction on his liberty and the amount of time spent in custody were also taken into account.

In deciding not to vary his sentence, the court said his behaviour since sentencing demonstrated the contrast between the prospects of rehabilitation under the present sentence and if he were required to return to custody.

When can a sentence be referred?

The power to review only applies to sentences passed in proceedings in the crown court and to certain offences.

The sentencing judge is usually best placed to weigh the relevant factors so leave to refer should only be granted in exceptional circumstances. There should be some error made that public confidence would be damaged if it was not rectified.

What does unduly lenient mean?

A sentence has to be considered unduly lenient rather than simply lenient. A sentence is unduly lenient if it falls outside of the range of sentences the judge could reasonably deem appropriate. Regard needs to be had to reported cases, guideline cases and the relevant sentencing guidelines.

Varying the sentence

If the court finds that the sentence was unduly lenient, the sentence can be increased. The court can also take ‘double jeopardy into account. Double jeopardy refers to the fact the person is being sentenced for a second time and the sentence can be reduced to account for that.

As can be seen from the case of Amin, the court does not have to change the sentence even when it is unduly lenient. Although part of the considerations, in this case, was the impact of Covid on prisoners, it is clear that the court can and will take into account any behaviour or compliance with the sentence that had been imposed.

We notify our clients if their offence is one which can be referred and also provide advice as to whether we think it is likely.

How can we help?

If you would like to discuss any aspect of your case, please contact our team on 0151 480 5777

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