Khater, R. v

On an Attorney General’s reference, a sentence should not be altered merely because it is lenient. Intervention is justified only where the sentence falls outside the range which a judge who has considered all relevant features could reasonably regard as appropriate.

A court sentencing attempted murder must follow the applicable guideline unless this would be contrary to the interests of justice. Level 1 offending may justify movement above the starting point where several features independently demonstrate exceptional seriousness. This does not amount to double counting. The seriousness of actual harm and the absence of previous convictions remain material in fixing the appropriate term.

The offender was convicted at the Central Criminal Court of two attempted murders after deliberately driving at cyclists and then at uniformed police officers guarding an access road to the Palace of Westminster. McGowan J imposed concurrent life sentences, with a minimum term of 15 years less time spent on remand.

The judge found that the offending had a terrorist connection and that the offender was dangerous. She treated the offences as Level 1 attempted murder and identified a notional determinate sentence of 30 years before setting the minimum term.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the minimum term was outside the range properly open to the sentencing judge.

1. The court refused leave to refer the sentence. Although the sentence could properly be described as lenient, it was not unduly lenient.

2. In a discretionary life-sentence case, section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 required the judge to identify the determinate sentence that would have been appropriate if life imprisonment had not been necessary, then reduce it to reflect the early-release regime. The judge correctly adopted the usual half reduction when converting her 30-year notional determinate sentence into a 15-year minimum term. This approach accorded with R v Burinskas [2014] EWCA Crim 334.

3. The judge was required to follow the attempted-murder guideline and was entitled to place the offences in Level 1. She could have moved upwards from the 30-year starting point because three separate features, each capable of bringing a completed murder within paragraph 4 of Schedule 21 to the Criminal Justice Act 2003, demonstrated exceptional seriousness. Taking those features into account would not have involved unfair double counting.

4. However, the actual physical harm was at the lower end of the Level 1 range, notwithstanding the grave psychological impact. The judge was also entitled to allow limited mitigation for the offender’s lack of previous convictions. Having presided at trial, she was well placed to assess culpability. Applying the test in Attorney-General’s Reference No 4 of 1989 [1990] 1 WLR 41, the 30-year notional sentence was within the range reasonably open to her. The life sentences and minimum term therefore remained unchanged.

• Court of Appeal (Criminal Division) — on the Attorney General’s reference, refused leave to refer the sentence as unduly lenient: [2019] EWCA Crim 2420.

• Central Criminal Court — on 14 October 2019, McGowan J sentenced the offender for two attempted murders to concurrent life sentences with a 15-year minimum term, less time spent on remand.