R v Ben Sean Solomon

On an Attorney General’s reference, a sentence is unduly lenient when it falls substantially below the sentence reasonably justified by the offender’s total criminality, even where each concurrent sentence is considered separately. Concurrent sentences must reflect all the offending and will ordinarily exceed the sentence for a single offence. A Goodyear indication does not prevent an increase where the prosecution has not endorsed the indicated length, the offender was warned of the Attorney General’s reference jurisdiction, and the overall interests of justice require intervention. In serious domestic offending involving prolonged strangulation, the court may increase the sentence beyond the guideline range for the principal offence to reflect associated blackmail and aggravating features. The high threshold under the Criminal Justice Act 1988 was met.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer a sentence imposed on R v Ben Sean Solomon after guilty pleas to blackmail and assault occasioning actual bodily harm against a former partner. On 8 July 2022, HHJ Mousley KC imposed 18 months’ imprisonment for the assault and six months concurrently for the blackmail, following a Goodyear indication of a maximum sentence of two years. The Attorney General argued that the assault was properly Category 1A, or alternatively at the top of Category 2A, and that the total sentence failed to reflect the blackmail and other aggravating features. The central questions were whether the sentence was unduly lenient and whether the court could intervene despite the indication.

1. Threshold and disposition. The court granted leave and applied the high threshold governing references under section 36 of the Criminal Justice Act 1988. The sentence had to be not merely lenient but unduly so, involving a substantial departure from ordinary sentencing norms. That threshold was met.
2. Assault sentence. The assault involved high culpability, including repeated strangulation and suffocation, a prolonged and persistent attack, and an attempt to prevent the victim from obtaining help or leaving. The bruising and swelling to the neck, together with the real impact on the victim, placed the offending at the top of Category 2A, even leaving the disputed PTSD diagnosis aside. The absence of a weapon did not materially reduce culpability. A sentence of about 27 months was justified for the assault alone. The court did not interfere with the judge’s categorisation because the prosecution had appeared to agree to Category 2 and the issue of Category 1 harm had not been fully explored.
3. Totality. The totality guideline required the concurrent sentence for the blackmail to produce a material increase reflecting additional grave criminality. The threats to disclose intimate videos to friends, family and work colleagues were serious and potentially real. An overall sentence of at least three years was required, and it was permissible in the interests of justice to go outside the Category 2A range.
4. Goodyear indication. Under R v Goodyear [2005] EWCA Crim 888, the basis of plea should be written, prosecution counsel should identify relevant powers, guidelines and authorities without endorsing the indication, and defence counsel should ensure that the offender understands the Attorney General’s power to refer. An indication is binding on the judge save in exceptional circumstances, but a compliant indication process does not restrict the Attorney General’s discretion. Applying Attorney General’s Reference R v Powell [2017] EWCA Crim 2324, the court considered the prosecution’s silence, the absence of endorsement, Solomon’s prior warning about a reference, and the interests of the victim and the public. There was no legitimate expectation preventing intervention. The principle in Farah [2006] EWCA Crim 2396 also confirmed that failure to give such a warning would not, of itself, bar an increase.
5. Order. The reference was allowed. The sentence on Count 2 was quashed and replaced by three years’ imprisonment, of which half was to be served in custody. The concurrent six-month sentence on Count 1 remained.

1. Court of Appeal (Criminal Division) — On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, allowed the reference and substituted three years’ imprisonment for the assault sentence: [2022] EWCA Crim 1333.
2. Crown Court — On 8 July 2022, HHJ Mousley KC sentenced the offender to 18 months’ imprisonment for assault occasioning actual bodily harm and six months concurrently for blackmail, following a Goodyear indication.