George & Anor, R. v (Rev 1)

The sentencing slip rule permits correction of a material error of fact or law, including a material misapplication of sentencing guidelines. Its exercise requires a flexible balance between finality and fairness to the defendant, and the public interest in correct and appropriate sentences.

A court should not increase a sentence for a mere change of mind. It may do so where an important error has materially affected the sentence. Aggravating features may justify an upward adjustment from a guideline starting point before further adjustment for aggravating and mitigating factors. A suitable reduction from the corrected sentence may address the unfairness of recalling a defendant for resentencing.

George and Ingram were convicted after trial of a planned commercial burglary. The offenders used a vehicle to force entry, stole jewellery, caused substantial damage and escaped on mopeds. The sentencing judge initially imposed sentences of two years and six months’ imprisonment.

The following day, he concluded that he had wrongly treated the offence-related aggravating features as capable only of neutralising mitigation. At a fresh hearing, he used the slip rule to increase each sentence to three years and three months, allowing a three-month reduction for the impact of the correction.

The applicants sought leave to appeal against sentence. They contended that the judge had merely reconsidered a lawful, albeit lenient, sentence and had misapplied the statutory correction power.

1. The applications were dismissed. The judge was entitled to correct the original sentences under section 155(1) of the Powers of Criminal Court (Sentencing) Act 2000.

2. The governing approach is flexible. The court must balance the public interest in finality, legal certainty and fairness to a sentenced defendant against the strong public interest in correct and appropriate sentences. The former “affront to the appearance of justice” formulation is no longer a complete test, though it may remain relevant.

3. The power is not confined to a sentence susceptible to an Attorney General reference for undue leniency. Nor is it confined to a missed statutory requirement. A material error of fact or law, including a material misapplication of relevant sentencing guidelines, may justify correction. The error must be material both in its nature and in its effect on the sentence; a correction producing no material increase should not be made.

4. The judge’s original approach was a material error of principle. He had wrongly treated the aggravating features as doing no more than cancelling mitigation, save for previous convictions. Properly applied, the guidelines allowed the serious and multiple aggravating features to move the sentence above its starting point. Those features substantially outweighed the modest mitigation.

5. The revised sentence reflected that error and its material effect. The judge also properly mitigated the defendants’ legitimate grievance at being recalled by reducing the sentence he otherwise considered appropriate. The sentences of three years and three months’ imprisonment therefore stood.

• Court of Appeal (Criminal Division) The applicants’ challenges to the increased sentences were dismissed.
• Southwark Crown Court HHJ Bartle QC initially imposed two years and six months’ imprisonment on each applicant. Exercising the slip rule at a fresh hearing, he corrected the sentences to three years and three months’ imprisonment.