REX v JOSHUA ANTHONY KEHOE (AKA YATES) & Anor.

On an Attorney General’s reference under the Criminal Justice Act 1988, a sentence is unduly lenient if it falls outside the range reasonably open to the sentencing judge. Where concurrent sentences are imposed for grave, prolonged and persistent violence against multiple victims, the lead offence must contain a substantial uplift reflecting the totality of the offending. Failure to address dangerousness can require appellate intervention. Where the statutory criteria are met, an extended sentence may be required to protect the public.

The Solicitor General referred the sentences imposed on two offenders after they pleaded guilty to multiple violent offences arising from a prolonged attack in a public house. The Crown Court imposed concurrent sentences totalling two years and eight months on Harper and four years on Kehoe. The reference challenged the categorisation and overall structure of the sentences, and the failure to address dangerousness, particularly in Kehoe’s case.

The central issues were whether the sentences were unduly lenient, whether concurrent sentences adequately reflected the totality and gravity of the offending, and whether Kehoe was a dangerous offender requiring an extended sentence.

1. Outcome. The applications under s.36 of the Criminal Justice Act 1988 were granted. The sentences were unduly lenient and were substituted.
2. Applicable threshold. The sentencing judge is particularly well placed to weigh competing factors. A sentence is unduly lenient only where it falls outside the range reasonably open to the judge. Permission should be granted only in exceptional circumstances and not in borderline cases. Section 36 addresses cases involving gross sentencing error.
3. Sentence structure and totality. Consecutive sentences were not required. However, once concurrent sentences were selected, a very substantial uplift to the lead sentence was necessary to reflect the offending as a whole. The lead s.18 offence involved grave harm and high culpability, including a prolonged and persistent attack, placing it in Category 2A with a starting point of seven years’ custody and a range of six to 10 years.
4. Revised sentences. After applying aggravating factors and totality, the appropriate custodial term after trial was 12 years for Kehoe and eight years for Harper. Full credit for guilty pleas produced eight years for Kehoe and five years and four months for Harper.
5. Dangerousness. Kehoe should have been found to be a dangerous offender, having regard in particular to his previous convictions for violence and all the circumstances under s.308 of the Sentencing Act 2020. An extended sentence was necessary to protect the public, comprising eight years’ custody and a four-year extension period. The other concurrent sentences were left undisturbed.

• Court of Appeal (Criminal Division): on the Solicitor General’s references under s.36 of the Criminal Justice Act 1988, the sentences were found unduly lenient and substituted with increased sentences.
• Crown Court at Liverpool: on 15 June 2022, HHJ Bond imposed concurrent sentences totalling two years and eight months on Harper and four years on Kehoe.