Warren, R. v

A sentencing court may use the statutory slip-rule power to correct a material error of fact or law in the sentencing process. It must not use that power merely because the judge has later changed his or her mind about the appropriate sentence.

The correction should be made promptly and within the statutory 56-day limit. The possible availability of an Attorney General reference is relevant, but it cannot justify changing a sentence which the judge still considers correct. A defendant should ordinarily be present at re-sentencing, although the court may proceed in the defendant’s absence where a fully instructed advocate can make effective representations. Fairness and the appearance of justice remain material and may justify a modest reduction in the revised sentence.

R v Warren concerned a guilty plea to conspiracy to rob jewellers. The appellant drove the escape van after the executed robbery and participated in planned robberies and reconnaissance. The Crown Court at Blackfriars initially imposed six years and eight months’ imprisonment.

Within 56 days, the Recorder re-sentenced the appellant under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. The Recorder had mistakenly overlooked the appellant’s participation in the executed robbery and further reconnaissance. The revised sentence was eight years and six months.

On appeal, the appellant challenged the jurisdiction and fairness of increasing sentence under the slip rule, particularly in his absence, and contended that the sentence was excessive.

1. Appeal dismissed. The Recorder had jurisdiction to re-sentence and lawfully increased the sentence after identifying material errors in the factual basis on which the original sentence had been imposed.

2. The court accepted the approach in R v Goss [2016] EWCA Crim 541. The Attorney General’s power to seek review of an unduly lenient sentence meant that the former approach in R v Nodjoumi could no longer operate as an absolute bar on using the slip rule to increase a sentence after time had passed. A judge must nevertheless distinguish a material error in the sentencing process from a mere later change of mind.

3. The correction should be made at the earliest opportunity, preferably on the same day. The lapse of time is relevant to the fair exercise of the discretion. The power must be exercised within the 56-day limit, as recognised in R v Nguyen [2016] EWCA Crim 448. The prospect of an Attorney General reference was a material consideration here, but a judge should not alter a sentence solely because such a reference is threatened if the original sentence is still considered right.

4. A defendant should ordinarily be present when sentenced or re-sentenced. Rule 28.44 nevertheless allowed the Recorder to proceed where the appellant’s trial advocate was present, fully aware of the relevant facts and able to make effective submissions. Administrative convenience could not displace the general importance of the defendant’s attendance.

5. The appellant’s uninduced expectation arising from the original sentence and the appearance of justice remained relevant. The Recorder properly reflected them by reducing the revised sentence by two months. The 13-year starting point, and the final sentence of eight years and six months, were rational, fair and not manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed the appeal against the revised sentence in [2017] EWCA Crim 226.
• Crown Court at Blackfriars: Following a guilty plea to conspiracy to rob, imposed six years and eight months’ imprisonment on 18 March 2016. On 27 April 2016, re-sentenced the appellant under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 to eight years and six months’ imprisonment.