Rose, R. v

When fixing a custodial sentence, a sentencing judge should ordinarily disregard the potential release date prescribed by Parliament. If an error about release is exposed after sentence, the correct sentence should ordinarily be imposed. A legitimate expectation arising from the mistake justifies retaining a lower sentence only in rare or exceptional circumstances.

A sentence may be lenient without being unduly lenient. The Court of Appeal should intervene where the sentence is unduly lenient, but may respect a trial judge’s measured leniency, particularly where that judge conducted the trial.

Following a jury trial at Portsmouth Crown Court, Darren Rose was convicted of aggravated burglary and wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. The judge initially imposed nine years’ imprisonment for aggravated burglary and six years concurrently for wounding with intent.

The judge had incorrectly stated that the offender would be eligible for release after serving half the sentence. After the error was raised, the judge considered that a legitimate expectation had arisen and reduced the aggravated burglary sentence to seven years. On a reference under section 36 of the Criminal Justice Act 1988, the central issues were whether the sentence was unduly lenient and whether the release-date mistake justified the reduction.

Reference allowed. The total sentence of seven years’ imprisonment was unduly lenient and the Court of Appeal intervened.

1. The aggravated burglary fell within category 1 of the relevant guideline, involving greater harm and higher culpability. The starting point was ten years’ custody, with a range of nine to 13 years. The offending involved a targeted revenge attack, weapons, violence against more than one victim, significant previous convictions, night-time offending and serious effects on the victims. The offender’s personality disorder and the impact of imprisonment were relevant mitigation, but the psychiatric evidence did not link the disorder to the commission of the offence.
2. A sentencing judge should ordinarily have no regard to the potential release date set by Parliament: Burinskas [2014] 1 WLR 4209. Where a release-date error is exposed, the correct sentence should ordinarily be imposed. A legitimate expectation arising from the mistake justifies a different course only in rare or exceptional circumstances: Hardy [2013] EWCA Crim 36. No such circumstance existed.
3. The seven-year sentence fell substantially below the guideline range and was unduly lenient. The initially imposed nine-year sentence was itself lenient, and a sentence in double figures could have been expected, but it was not unduly lenient. The trial judge had conducted the trial and was entitled to display some leniency. The sentence on count 2 was quashed and increased to nine years’ imprisonment. The concurrent six-year sentence on the other count remained in force. The Court also took account of the offender’s excellent recent conduct in prison.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the seven-year sentence was quashed as unduly lenient and increased to nine years, with the concurrent six-year sentence standing. [2021] EWCA Crim 155.
• Crown Court at Portsmouth: Following conviction on 30 July 2020, the judge initially imposed nine years’ imprisonment for aggravated burglary and six years concurrently for wounding with intent. The aggravated burglary sentence was later reduced to seven years after the release-date error was identified.