Ali, R. v

In an Attorney General reference against an allegedly unduly lenient sentence, the Court of Appeal may criticise the sentencing methodology yet leave the sentence undisturbed where, viewed in the exceptional circumstances as a whole, it is not properly regarded as unduly lenient. A sentencing judge should avoid double-counting an offender’s age or immaturity where that factor has already influenced the culpability category or starting point. The criminal court’s purposes of retribution, deterrence and reformation differ from the family court’s welfare-focused assessment. Those distinct perspectives must be kept separate, although the child’s welfare and the consequences of immediate custody may form part of the exceptional circumstances relevant to sentence.

The Solicitor General referred the sentence imposed on a mother after she pleaded guilty to two counts of cruelty under Children and Young Persons Act 1933, section 1(1). The offences concerned prolonged failures to obtain medical care and to engage with healthcare services for her seriously disabled son.

The Crown Court imposed concurrent two-year terms of imprisonment, suspended for two years, with rehabilitation and supervision conditions. The reference challenged the categorisation, reductions for age and plea, and the decision to suspend imprisonment. The central issue was whether the sentence was unduly lenient despite the offender’s immaturity, traumatic background, primary-carer status and the family court’s conclusion that the child should remain with both parents.

1. Reference dismissed. The court granted leave under section 36 of the Criminal Justice Act 1988, but concluded that the sentence, although very lenient, was not one with which it should interfere.
2. The sentencing judge was entitled to treat the case as exceptional. Relevant circumstances included the offender’s age and immaturity when the offending began, her traumatic background and mental-health concerns, her status as the child’s primary carer, the child’s severe disability, the established bond between mother and child, the absence of further concerns since November 2017, and the likely consequences of immediate custody. These matters could justify a suspended sentence even though the offending involved repeated failures over a lengthy period.
3. The judge’s methodology was open to criticism. In particular, applying a further one-third reduction for age was erroneous in principle because lack of maturity had already contributed to placing the case in the lower culpability category and selecting the starting point. That amounted to double-counting. The reduction for the late guilty pleas was also very generous, though it remained arguably within the sentencing judge’s discretion.
4. The family court’s welfare assessment did not determine the criminal sentence. The criminal court must apply retributive, deterrent and reformative principles, whereas the family court has a different focus. Nevertheless, the family court’s findings and the practical effect of imprisonment were relevant to the exceptional overall assessment.
5. The resulting sentence remained within the broad area of judgment available to the Crown Court. The reference was therefore dismissed and the existing status quo maintained.

• Court of Appeal (Criminal Division): The Solicitor General referred the Crown Court sentence under section 36 of the Criminal Justice Act 1988. Leave was granted, but the reference was dismissed on 15 September 2020.