R v FG

On a reference under section 36 of the Criminal Justice Act 1988, appellate intervention requires a sentence to be unduly, rather than merely, lenient. The court must assess the ultimate sentence against ordinary sentencing norms, even where it identifies errors in the sentencing judge’s guideline categorisation.

An assault causing grave injuries to a five-month-old child was properly assessed as culpability A and harm category 2. The child’s subsequent recovery did not diminish the gravity of the harm. Nevertheless, mental-health difficulties and personal mitigation remained relevant. A four-year sentence was lenient but within the bounds of acceptability, so it was not unduly lenient or manifestly excessive.

FG pleaded guilty at Nottingham Crown Court to causing his five-month-old son grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. He had shaken the child by the legs during a short loss of self-control. The child sustained serious head, spinal and retinal injuries, although his subsequent development appeared satisfactory.

On 12 September 2022, the sentencing judge adopted culpability B and harm at the lower end of category 2 or upper end of category 3 under the Sentencing Council assault guideline. The judge imposed five years’ imprisonment before a 20% guilty-plea reduction, producing a four-year sentence.

The Solicitor General sought to refer the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. FG sought permission to appeal on the basis that it was manifestly excessive. The central issue was whether, despite errors in categorisation, the final sentence crossed either appellate threshold.

1. The court granted leave on the Solicitor General’s reference but dismissed it on its merits. It refused FG leave to appeal against sentence. The four-year sentence therefore remained in force.

2. References under section 36 of the Criminal Justice Act 1988 serve to correct gross sentencing error, address substantial public concern and maintain confidence in sentencing. Applying Attorney General’s Reference No 132 of 2001 (R v Johnston), [2002] EWCA Crim 1418, the court held that the high threshold is not met by a sentence which is merely lenient. A defendant likewise requires a sentence that is manifestly excessive or wrong in principle.

3. The sentencing judge had erred in categorising the offence. The dominant feature was the obvious vulnerability of a five-month-old child, making this culpability A offending. The grave injuries placed harm in category 2; the child’s good recovery did not alter that conclusion. There was only limited evidence that the offender’s personality traits were linked to the commission of the offence. Those difficulties and his personal background nevertheless remained significant mitigation.

4. The court identified substantial aggravating features, including the force used, abuse of trust, the presence of another child, the failure to obtain medical assistance or disclose events, and the attempt to blame the other child. A sentence of at least six years before guilty-plea credit could readily have been justified. However, applying the correct ultimate test, the sentencing judge had conducted a careful exercise in a difficult case and had given due weight to the short, temporary loss of self-control and the mitigation. The resulting four-year term was lenient but not outside the bounds of acceptability.

• Court of Appeal (Criminal Division) — In [2022] EWCA Crim 1779, the court granted leave on the Solicitor General’s reference but dismissed it, and refused FG permission to appeal against sentence.
• Nottingham Crown Court — On 12 September 2022, Her Honour Judge Julie Warburton imposed five years’ imprisonment before 20% credit for the guilty plea, resulting in a four-year term.