REGINA v ELAINE CLARKE

A sentence is unduly lenient only where it falls outside the range which a judge, taking account of all relevant factors, could reasonably regard as appropriate.

Under an offence-specific sentencing guideline, the court must first assess seriousness and select the appropriate category. It must then decide whether aggravating and mitigating factors justify movement from the category starting point. A factor used to determine culpability at the first stage must not be counted again at the second stage. This is especially important where extreme culpability factors have already placed an offence in the highest category.

The offender pleaded guilty to the gross-negligence manslaughter of her adult daughter, who had Down’s syndrome and was wholly dependent on her care. The daughter died after prolonged severe neglect, emaciation and an overwhelming scabies infection.

At Preston Crown Court, Yip J placed the offence in Category A of the relevant gross-negligence manslaughter guideline. The judge imposed a sentence of nine years and seven months’ imprisonment after a guilty-plea reduction.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the judge’s conclusion that the appropriate sentence after trial was 12 years fell outside the range properly open to her.

1. Leave to refer was refused. Applying the familiar test stated in Attorney General’s Reference No. 4 (of 1989) [1990] 1 WLR 41, the court held that the sentence was within the range reasonably open to the sentencing judge. It therefore could not be characterised as unduly lenient.

2. The relevant offence-specific guideline required a two-stage exercise. At step one, the sentencer assesses seriousness by reference to specified features and selects the appropriate category. At step two, the sentencer considers aggravating and mitigating factors to decide whether to adjust the category starting point.

3. A sentencer must avoid double counting. An aggravating or mitigating factor already used to categorise the offence at step one should not again increase or decrease the sentence at step two. Particular care is required where the extreme nature or combination of Category B culpability factors has placed gross-negligence manslaughter in Category A and thereby increased the starting point.

4. The judge had correctly placed this exceptionally grave offending in Category A. She had identified the relevant aggravating features, but properly declined to use again those already reflected in that categorisation. She also gave proper weight to the offender’s personal mitigation and guilty plea.

5. The judge was best placed to balance the remaining aggravation and mitigation. Her conclusion that a 12-year sentence after trial was appropriate disclosed no error of approach and was not outside the permissible range. The original sentence therefore remained in force.

• Court of Appeal (Criminal Division). In an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court refused leave to refer the sentence as unduly lenient: [2022] EWCA Crim 1109.
• Crown Court at Preston. On 24 February 2020, Yip J sentenced the offender to nine years and seven months’ imprisonment following her guilty plea to gross-negligence manslaughter.