Hoban, R. v

Under section 36 of the Criminal Justice Act 1988, a sentence may be increased only where it is unduly lenient. It is not enough that an appellate court would have imposed a higher sentence. The sentence must fall outside the range which a judge, taking account of all relevant factors, could reasonably regard as appropriate.

The appellate court must respect the sentencing judge’s assessment of competing aggravating and mitigating features. The reference procedure is directed to gross sentencing error, not to correcting every sentence which may be thought lenient.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the offender’s sentence as unduly lenient.

At Teesside Crown Court, the offender had pleaded guilty to arson reckless as to whether life was endangered, malicious communication, and breach of a restraining order. He set fire to vehicles outside the home of his former partner after making threats to her. The fire caused substantial damage and created a risk to people in the house.

The sentencing judge imposed three years’ imprisonment for the arson, after full credit for guilty pleas, with concurrent six-month sentences for the other offences. The central question was whether that total sentence fell outside the range reasonably open to the sentencing judge.

1. The court refused the Attorney General’s application for leave to refer the sentence. The total sentence of three years’ imprisonment was not unduly lenient.

2. Section 36 permits an increase only where a sentence falls outside the range which a judge, properly considering all relevant factors, could reasonably regard as appropriate. The court applied the approach stated in Attorney General's Reference No 4 of 1989 (1990) 90 Cr App R 366. A sentence is not unduly lenient merely because the appellate court, or other sentencing judges, might have imposed a longer term.

3. The sentencing judge had correctly placed the arson in culpability category B and at the upper end of harm category 2 under the applicable guideline. She selected a post-trial term of four and a half years, above the four-year starting point, before giving full credit for the guilty pleas.

4. The aggravating features, including the domestic setting, breach of a protective order and risk created by the fire, could have justified a higher sentence. However, the judge had also taken account of the offender’s mental health difficulties and immaturity. The resulting sentence remained within the guideline range and within the range reasonably open to her.

5. Although the Attorney General’s reference procedure addresses gross error and public confidence, those considerations did not justify intervention on these facts. The application was therefore refused.

• Court of Appeal (Criminal Division): refused the Attorney General’s application under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.
• Crown Court at Teesside: on 17 September 2020 imposed a total sentence of three years’ imprisonment following guilty pleas to arson, malicious communication and breach of a restraining order.