Smith, R v

Sentencing for kidnapping is necessarily fact-specific because offences range widely in seriousness. A serious family kidnapping of an adult, involving force and an interference with personal autonomy, crosses the custody threshold. Immediate custody is nevertheless not invariably required. The court must assess whether a suspended sentence can provide just and proportionate punishment, having regard to risk, compliance history, rehabilitation and the particular circumstances.

Although a defendant who pleads guilty after trial has begun ordinarily has no entitlement to credit, a sentencing judge’s intervention may reasonably create an expectation of limited credit. That expectation must be reflected in sentence.

Leanda Smith and Edward Smith appealed against concurrent sentences of three years’ imprisonment for kidnapping their 19-year-old daughter, Laura. The offence arose from the appellants’ concern about Laura’s relationship with an older man. They forcibly removed her from her workplace, drove her around for about three hours, changed vehicles, and took her to their home.

They pleaded guilty after their daughter had begun giving evidence at trial. At sentence, the first-instance judge treated the offence as requiring immediate custody and gave no credit for the late pleas. The appellants contended that the sentences were excessive, should have been suspended, and should have reflected the judge’s earlier intervention during the trial.

1. Appeals allowed. The three-year sentences were quashed. Each appellant received 17 months’ imprisonment, suspended for two years, with a rehabilitation activity requirement of 20 days.

2. Kidnapping covers a broad range of seriousness and, in the absence of a definitive guideline for that offence, sentence is necessarily fact-specific. This was a serious kidnapping: significant force had been used to remove an adult from her workplace, causing distress and humiliation. It was also an attack on her entitlement to make her own relationship decisions and on her personal autonomy.

3. The custody threshold was plainly crossed. However, the kidnapping was of short duration and was genuinely, though wrongly, motivated by parental concern rather than gratuitous punishment. The appellants’ remorse was genuine, family relationships had improved, neither appellant posed a risk to the public, and neither had a history of non-compliance with court orders. In those particular circumstances, immediate custody was not the only means of achieving appropriate punishment. Three years’ imprisonment exceeded what was just and proportionate.

4. A disputed allegation that Leanda Smith slapped Laura in the car should have been resolved at a Newton hearing if it were to be a significant sentencing factor. It did not affect the appeal because both appellants had received equal sentences.

5. Ordinarily, a guilty plea after trial has begun attracts no entitlement to a reduction. Here, the trial judge’s intervention immediately before the CCTV footage was to be played could reasonably have been understood as indicating that pleas at that stage would receive some limited credit. A small reduction from the otherwise appropriate 18-month term was therefore required.

• Court of Appeal (Criminal Division): Allowed the sentencing appeals in [2019] EWCA Crim 1469, quashed the concurrent three-year sentences, and substituted concurrent suspended sentences of 17 months’ imprisonment.
• First-instance court: On 7 May 2019, imposed concurrent sentences of three years’ immediate imprisonment following late guilty pleas to kidnapping.