Callum-Smith, R. v

Under section 36 of the Criminal Justice Act 1988, the Court of Appeal does not conduct a general review of sentence. It may intervene only where a sentence is unduly lenient, meaning that it is plainly outside the range of appropriate sentences. The jurisdiction is directed to gross sentencing error and departures substantially from sentencing norms. A sentence at the lower end of the appropriate range does not meet that threshold where the sentencing judge considered the material aggravating and mitigating factors.

R v Callum-Smith concerned an Attorney General’s application for leave to refer as unduly lenient sentences imposed at the Crown Court at Luton on 5 February 2020. The offender had pleaded guilty to two robberies of local convenience stores and asked the court to take into consideration two further robberies and an attempted robbery committed over three days.

The principal robbery was categorised under the robbery guideline as Category 2A, with a five-year starting point and a range up to eight years. The judge imposed seven years before applying 25 per cent credit for guilty pleas, resulting in five years and three months on the principal count. The central issue was whether that final sentence was unduly lenient for the purposes of section 36.

1. Leave to refer was refused. The sentence of five years and three months’ imprisonment on the principal robbery count, with a concurrent sentence on the second count, was at the lower end of the appropriate range but was not unduly lenient.
2. The Court accepted that the principal offence was correctly placed in Category 2A. The sustained campaign against small stores, use of weapons, group offending, attempts to conceal identity, previous convictions, offending while on licence, and offences taken into consideration were material aggravating features. The sentencing judge had identified and considered them. The Court added that where two participants have similar roles in a joint-enterprise robbery, describing both as having joint leading roles may not be helpful.
3. The aggravating circumstances placed the offending at least at the top of the category range. However, the judge was also entitled to give weight to mitigation. This included genuine remorse, admissions to further offences for which no forensic evidence linked the offender, efforts to care for his family, and the offender’s intention to address drug and mental-health difficulties. The seven-year figure before plea credit had already reflected that mitigation.
4. Section 36 of the Criminal Justice Act 1988 is not a general appellate power to substitute the Court’s own sentencing view. It is reserved for sentences plainly outside the appropriate range and directed to gross error or a substantial departure from sentencing norms. That high threshold was not met.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 596, the Court refused the Attorney General leave to refer the sentences as unduly lenient.
• Crown Court at Luton: On 5 February 2020, the offender received an overall sentence of five years and three months’ imprisonment after guilty pleas to two robberies and the taking into consideration of three further offences.