McGinley & Anor, R. v (Rev 1)

In an Attorney General’s reference against allegedly unduly lenient sentences, the Court of Appeal held that a finding that an offender is dangerous does not automatically require an extended determinate sentence. The sentencing judge must first consider whether a standard determinate sentence of sufficient length would provide adequate public protection. A sentence within the applicable guideline range will not be interfered with where the judge has considered the relevant aggravating and mitigating factors and made no error of principle. Youth, immaturity, limited or less serious previous offending, role in the attack, absence of a weapon, mental health difficulties and the offender’s prospects under licence may materially affect the proper sentence.

Two 20-year-old offenders were sentenced in the Crown Court at Nottingham following a knife attack in which a man was repeatedly stabbed, kicked and stamped on, while his young son witnessed the incident. McGinley pleaded guilty to wounding with intent and possession of a bladed article. Morris was convicted of wounding with intent and robbery.

The Attorney General’s reference under Criminal Justice Act 1988, section 36, alleged that the sentences were unduly lenient. The reference challenged both the length of the custodial terms and the judge’s approach to dangerousness and extended determinate sentences.

1. The court refused leave to refer the sentences. The sentences therefore remained nine years’ detention in a young offender institution for McGinley, with two years concurrent, and eight years’ detention for Morris, with three years concurrent. The Crown Court record was amended in McGinley’s case to refer to detention in a young offender institution rather than imprisonment.

2. The sentencing judge had considered the applicable guideline and the relevant aggravating and mitigating circumstances. The attack was serious and involved several aggravating features, including the use of knives, the presence and distress of the victim’s young son, Morris’s relevant previous convictions and his commission of the offences while on licence.

3. Those matters had to be balanced against the offenders’ young ages, low maturity and unsettled childhoods. McGinley had carried and used a weapon but had very few previous convictions and no previous custodial sentence. Morris had a worse record but had neither carried nor used a weapon, joined the attack later and left while the others continued it. His mental health difficulties could also be taken into account as mitigation.

4. Even if either offender had been found to be dangerous, the judge would have had a power, rather than an obligation, to impose an extended determinate sentence. The judge first had to consider whether a standard determinate sentence of significant length would provide sufficient public protection. The court interpreted the judge’s statement that dangerousness need not be taken into account as indicating that he had decided that the sentences imposed would provide sufficient protection. That conclusion was open to him.

5. The sentences were within the range properly open to the judge. The court found no error of principle, and the sentencing was not unduly lenient.

1. Crown Court at Nottingham: on 4 December 2020, the offenders received custodial sentences totalling nine years in McGinley’s case and eight years in Morris’s case.

2. Court of Appeal (Criminal Division): the Attorney General’s references under section 36 of the Criminal Justice Act 1988 were refused. The sentences remained in force.