Law Report: Prevalence of offence relevant: Regina v Cunningham - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Potts and Mr Justice Judge), 27 November 1992

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Prevalence of an offence is a legitimate factor in determining the length of a custodial sentence to be passed.

The Court of Appeal reduced a sentence of four years' imprisonment to three years. The appellant, who is 22, pleaded guilty and was sentenced to four years' imprisonment for robbery in a small corner shop at knife-point and to two years for theft.

Philip Meredith (Registrar of Criminal Appeals) for the appellant; David Calvert-Smith and David Thomas (CPS) as amicus curiae.

LORD TAYLOR CJ, giving the judgment of the court, said that the robbery was so serious that only a custodial sentence could be justified and fell within section 1(1)(a) of the Criminal Justice Act 1991. Where the length of a custodial sentence was challenged the Court of Appeal would be concerned as to whether the term was appropriate under the criteria of the 1991 Act. It was unlikely to be moved by nice arithmetical comparisons between periods under the old and new regimes.

Section 2(2)(a) permitted the sentencing judge to take the need for deterrence into account. The purposes of a custodial sentence must primarily be to punish and deter. The phrase 'commensurate with the seriousness of the offence' in section 2(2)(a) must mean commensurate with the punishment and deterrence which the seriousness of the offence required.

Section 2(2)(a) prohibited adding any extra length to the sentence which by those criteria was commensurate with the seriousness of the offence so as to make a special example of the defendant.

Prevalance of this kind of offence was a legitimate factor in determining the length of custodial sentence. The seriousness of an offence was clearly affected by how many people it harmed and to what extent. For example, if violent sexual attacks were prevalent in a neighbourhood, each offence affected not only the immediate victim but women generally in that area. The sentence commensurate with the seriousness of the offence might need to be higher than elsewhere.

Although the judge was right to regard the robbery as very serious and to bear in mind the need for deterrence and the prevalence generally of offences of this kind, he did not sufficiently have regard to the mitigating circumstances. A sentence of three years would be substituted.

Ying Hui Tan, Barrister