Vacciana, R. v

Under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only where it falls outside the range which a sentencing judge could reasonably regard as appropriate. The appellate court retains a discretion even then.

Where concurrent sentences are imposed for serious linked offending, the headline custodial term must reflect the overall gravity of all offences. Totality precludes a mathematical aggregation of individual sentences, but it does not permit the overall term to understate the offending. Prison restrictions arising from the Covid-19 pandemic require a fact-specific assessment and do not automatically justify a lower sentence.

The offender was convicted at Snaresbrook Crown Court of rape, attempted rape, causing grievous bodily harm with intent, assault occasioning actual bodily harm and common assault against his partner. The sentencing judge imposed an extended sentence of 17 years and six months, comprising a custodial term of 13 years and six months and a four-year extension period.

The Attorney General sought permission to refer the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the concurrent sentences and the headline term adequately reflected the gravity of the offender’s overall offending, and whether the Covid-19 pandemic justified leaving the sentence unchanged.

1. The court granted permission for the Attorney General’s reference and increased the sentence. A sentence may be increased under section 36 of the Criminal Justice Act 1988 only if it is unduly lenient in the sense stated in Attorney-General's Reference (No 4 of 1989) (1990) 90 Cr App R 366. The court also retains a discretion whether to increase such a sentence.

2. The judge’s categorisation of the principal rape as category 2A under the rape guideline could not properly be disturbed. The trial judge had heard the evidence and was better placed to assess harm and culpability.

3. However, the custodial term of 13 years and six months was outside the reasonable range. The numerous concurrent sentences included attempted rape, two offences of causing grievous bodily harm with intent, further rapes and serious assaults. Consecutive sentences would have been wrong, and totality required a substantial reduction from their aggregate. Nevertheless, the headline term had to reflect the true gravity of the overall offending.

4. The Covid-19 pandemic did not materially affect the appropriate sentence. Having regard to Attorney-General's Reference (R v Manning) [2020] EWCA Crim 592 and Whittington [2020] EWCA Crim 1560, the court held that the offender faced a long period in custody and had been sentenced before the first lockdown.

5. The sentence on count 8 was quashed and replaced with an extended sentence comprising an 18-year custodial term and a four-year extension period, making 22 years in total. The other sentences and the extension period were not disturbed.

• Court of Appeal (Criminal Division): Granted permission for a reference under section 36 of the Criminal Justice Act 1988, quashed the sentence on count 8, and substituted an extended sentence of 22 years.

• Crown Court at Snaresbrook: On 16 March 2020, imposed an extended sentence of 17 years and six months, comprising 13 years and six months’ custody and a four-year extension period.