R v SA

A reference under section 36 of the Criminal Justice Act 1988 requires a high threshold: the sentence must be not merely lenient but unduly lenient. The Court of Appeal may interfere where the sentencing judge has materially departed from the applicable sentencing range through overlooked aggravating factors, excessive mitigation, or error in applying credit for qualifying curfew. The correct custodial term must be determined before considering suspension. Time spent on qualifying curfew is a matter of credit under section 325 of the Sentencing Act 2020, subject to suspension, and should not distort the initial custodial term. Once the proper term was assessed at not less than three years, suspension was not an option.

The Attorney General referred to the Court of Appeal under section 36 of the Criminal Justice Act 1988 a sentence imposed in the Crown Court at Woolwich for child cruelty contrary to section 1(1) of the Children and Young Persons Act 1933. The offender had assaulted his nine-year-old son with metal rods and a belt and required him to remain in a stress position for about two hours. He pleaded guilty after the prosecution case had substantially progressed.

The sentencing judge classified the offending as Category 2A under the Child Cruelty guideline and imposed 22 months’ imprisonment, suspended for 12 months. The reference challenged both the length of the term and its suspension. The central issues were whether the sentence was unduly lenient, how aggravating and mitigating features should be assessed, and how qualifying-curfew credit should be treated.

1. The reference was allowed. The sentence of 22 months’ imprisonment was unduly lenient, quashed, and replaced with three years’ imprisonment.
2. The Court applied the high threshold identified in Attorney General's Reference No. 132 of 2001 (R v Johnson) [2002] EWCA Crim 1418. The accepted Category 2A classification carried a three-year starting point and a range of two to six years.
3. Aggravating features had been overlooked, including the presence of other children who witnessed or heard the abuse, the failure to obtain medical assistance, attempts to blame others, and attempted concealment through text messages.
4. The offender’s limited previous record and the isolated nature of the incident afforded only limited mitigation. The latter was at most neutral. The offender’s age, the absence of proven offending against the other children, and his motivation provided little significant further mitigation. The absence of evidence of long-term psychological damage did not reduce sentence: trauma was apparent as a matter of common sense, and harm had already been reflected in categorisation.
5. The sentencing judge had wrongly allowed the qualifying curfew to influence the determination of the custodial term. The correct custodial sentence had to be identified first. Credit for qualifying curfew was dealt with under section 325 of the Sentencing Act 2020, subject to the question of suspension.
6. The aggravating factors justified increasing the starting point to at least three and a half years. After mitigation, the sentence could not properly be reduced below three years. The offending warranted a term of not less than three years, and suspension was therefore not an option.
7. The offender was to receive credit for half the qualifying-curfew period, subject to section 325. The relevant period was recorded as 340 days, with liberty to amend the record if necessary.

• Court of Appeal (Criminal Division) — [2022] EWCA Crim 1790. On a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, the Court granted leave, allowed the reference, quashed the 22-month suspended sentence and substituted three years’ imprisonment.
• Crown Court at Woolwich — The offender was sentenced to 22 months’ imprisonment, suspended for 12 months, with an electronic curfew, compensation and costs.