Mileham, R v

On a renewed application for leave against sentence, leave may be granted where the sentencing judge’s reasoning leaves it genuinely arguable that substantial mitigation was not properly reflected. If the notional sentence after trial already includes the mitigation, the starting point may have been too high. If mitigation is left to a separate deduction, it may have received insufficient weight. A sentence appeal concerns whether the sentence overall was manifestly excessive or wrong in principle, rather than mathematical calculation alone.

The applicant, aged 21, pleaded guilty to several drugs offences and was sentenced by the Crown Court at Sheffield to 44 months’ imprisonment. The sentencing judge treated the offending as category 3 street dealing with a significant role. The applicant did not challenge the category or the decision to impose custody, but challenged the length of the sentence. After a single judge refused leave, he renewed his application. The central issue was whether the sentencing remarks made it sufficiently arguable that substantial personal mitigation had not been properly reflected.

1. Renewed application granted. The application concerned only the length of the sentence. There was no challenge to the guideline category or to custody as the appropriate type of sentence.
2. The sentencing judge identified substantial mitigation, including the applicant’s previous good character, young age, short-lived and unsophisticated offending, efforts to improve his life, withdrawal from drugs and alcohol, mental-health difficulties, and the effect on his family. The pre-sentence report also referred to immaturity, insight and remorse.
3. The sentencing remarks did not explain how that mitigation affected the sentence. In particular, the judge did not identify the aggravating features which took the sentence above the guideline starting point or the mitigating features which reduced it. The statutory mitigating factors included remorse, the absence of previous convictions and lack of maturity.
4. The judge stated that the notional sentence after trial was six years, reduced to five and a half years for delay and progress, and then reduced by one-third for the guilty plea. If the six-year figure already incorporated the substantial mitigation, the unmitigated starting point appeared to have been towards the top of the guideline range and was arguably too high. If the mitigation was reflected in the six-month reduction, it was arguable that insufficient credit had been given for its substantial character.
5. The court emphasised that the substantive appeal would not focus on mathematical calculation alone. The relevant question would be whether, viewed overall, the sentence was manifestly excessive or wrong in principle. Directions were given for fresh grounds, representation, a respondent’s notice and a 30-minute hearing.

• Court of Appeal (Criminal Division): In [2021] EWCA Crim 397, the court granted the renewed application for leave to appeal against sentence.
• Crown Court at Sheffield: The applicant was sentenced on 3 September 2020 to 44 months’ imprisonment for drugs offences after pleading guilty.
• Single judge: Leave to appeal was refused, leading to the renewed application.