R v Michael Francis Egan

On a reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only if it falls outside the range reasonably open to the sentencing judge. Leave is exceptional and is not granted in borderline cases. Even where a sentence is unduly lenient, the appellate court retains a discretion whether to increase it, having regard to all relevant circumstances, including prosecution conduct. Historical offending is sentenced by reference to current guidelines, subject to the maximum available when the offending occurred and appropriate allowance for delay. A suspended sentence may be increased to immediate custody where the gravity of the offending requires it.

The Solicitor General referred sentences imposed in the Crown Court at Norwich on 17 October 2022. The respondent had pleaded guilty to two counts of cruelty to a person under 16, contrary to section 1(1) of the Children and Young Person's Act 1933, and one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. He received concurrent sentences totalling two years' imprisonment, suspended for two years.

The offending had occurred between 1988 and 1993 and involved prolonged abuse of a child. The central issues were whether the sentence was unduly lenient under section 36 of the Criminal Justice Act 1988, whether procedural matters surrounding a Goodyear indication affected the reference, and whether the sentence should be increased despite the respondent's age, guilty pleas and the passage of time.

1. Outcome. The application was granted. The total sentence was unduly lenient and required a substantial increase.

2. Applicable principles. The court applied the established principles summarised in Attorney-General's Reference (Azad) [2021] EWCA Crim 1846. A first-instance judge is particularly well placed to assess competing sentencing factors. A sentence is unduly lenient only where it falls outside the reasonable sentencing range, and leave is granted only in exceptional, non-borderline cases involving gross error. Following Attorney-General's Reference (No 4 of 1989) (1990) 90 Cr App R 366, the court retained a discretion whether to increase a sentence even after finding it unduly lenient. That discretion depended on the particular facts and could include the conduct of the prosecution. The court also noted the wider purposes of the reference system, including public confidence, as described in Attorney-General's Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418.

3. Goodyear procedure and prosecution conduct. The formal procedures governing a Goodyear indication had not been fully followed. Nevertheless, the prosecution had not positively endorsed or tacitly acquiesced in the proposed sentence. Counsel had been seeking to assist the sentencing court by referring to the relevant guidelines, which was the proper role identified in R v Goodyear [2005] EWCA Crim 888. The procedural history therefore did not make it unjust to intervene.

4. Historical offending and double jeopardy. The sentence had to respect the maximum available when the offences were committed, but the appropriate range was assessed by measured reference to current sentencing provisions and guidelines, with allowance where appropriate for the passage of time, following R v H [2012] 2 Cr App R(S) 21. The court took account of the lapse of three decades, the respondent's age, rehabilitation and guilty pleas. Double jeopardy could be a relevant consideration, but it did not prevent an increase to a sentence that could not be suspended, as explained in Attorney-General's Reference Nos 14 and 15 of 2006 (French and Webster) [2007] 1 Cr App R(S) 40.

5. Application to the offending. The offending involved cruel and prolonged abuse of a child over approximately five years, including a sadistic act involving a lit cigarette. The separate offences could not properly be treated as wholly concurrent. Even applying totality, the lead sentence required a substantial increase to reflect the overall gravity. A sentence of two years was therefore well below the appropriate level and could not properly be suspended.

6. Orders. The sentence on count 4 was quashed and increased from 18 months' imprisonment to 30 months, consecutive to the 18-month sentence on count 2. The 24-month sentence on count 6 remained concurrent. The resulting total was four years' imprisonment, commencing when the respondent surrendered to custody. The respondent was ordered to surrender at Great Yarmouth police station by 4.00 pm on 21 December 2022. The costs order was lifted.

• Crown Court at Norwich — On 17 October 2022, the respondent pleaded guilty to three offences and received concurrent sentences totalling two years' imprisonment, suspended for two years.
• Court of Appeal (Criminal Division) — The Solicitor General's reference under section 36 of the Criminal Justice Act 1988 was granted. The sentence was increased to four years' immediate imprisonment, and the costs order was lifted.