Attorney General's Reference No. 90 OF 2005

On a reference under section 36 of the Criminal Justice Act 1988, the question is whether the total sentence, viewed with proper regard to the trial judge’s sentencing discretion, is unduly lenient. A different allocation of sentence between offences does not itself establish undue leniency.

Where the sentencing judge has accurately identified and balanced the aggravating and mitigating features, an appellate court should not interfere merely because another judge might have imposed a higher sentence for one count. The sentence must fall outside the proper range before the statutory review jurisdiction is engaged.

The offender was acquitted of murdering his wife but convicted by a jury of her manslaughter on the basis that he lacked intent to cause death or serious harm. He pleaded guilty to preventing lawful burial after dismembering and concealing her body.

Gross J, at the Central Criminal Court, imposed two years’ imprisonment for manslaughter and three years consecutively for preventing lawful burial. The Solicitor-General sought leave to refer the total sentence of five years as unduly lenient under section 36 of the Criminal Justice Act 1988.

The central issue was whether, despite aggravating features including the force of the blow and the failure to obtain assistance, the total sentence was unduly lenient.

1. Leave to refer refused. The total sentence of five years was not unduly lenient. It was entirely appropriate in its totality and arguably also in its constituent parts.

2. The sentencing judge had conducted the trial, accurately analysed the relevant authorities, and concisely identified the material aggravating and mitigating features. Those features included the serious force of the blow, the failure to seek medical assistance, and the domestic setting; but also the absence of premeditation and previous violence, provocation, previous good character, and the offender’s pleas.

3. The crucial inquiry was the propriety of the total sentence. It was immaterial that some judges might have imposed a higher sentence for manslaughter than for preventing lawful burial. That possible difference did not show that the overall sentence fell outside the proper sentencing range.

4. Having regard to the discretion vested in trial judges in sentencing, the case was not capable of being categorised as one of undue leniency. The application should not have been brought.

• Court of Appeal (Criminal Division): The Solicitor-General’s application under section 36 of the Criminal Justice Act 1988 was refused: [2006] EWCA Crim 270.

• Central Criminal Court: Gross J imposed a total sentence of five years’ imprisonment for manslaughter and preventing lawful burial.