REGINA v PETER SWAILES (JUNIOR)

Where a court has accepted a properly considered basis of plea, it must sentence within the narrow factual limits of the admissions made. On an unduly lenient sentence reference, the Court of Appeal will not intervene merely because the sentencing judge’s assessment was generous. The reference must show that the assessment was not properly open on the accepted basis of plea.

A sentence may therefore remain lenient without being unduly lenient. Defence advocates requesting a sentence indication must ensure that the defendant understands that an indication remains subject to the Attorney General’s statutory right to refer an unduly lenient sentence.

The offender pleaded guilty at Carlisle Crown Court to conspiracy to arrange or facilitate the travel of a vulnerable man for exploitation. The accepted basis of plea confined his role to limited occasions on which, at his father’s direction, the victim worked for him and was sometimes paid below his minimum entitlement.

After a sentence indication, the judge imposed nine months’ imprisonment, suspended for 18 months, with a rehabilitation activity requirement. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. He contended that the offence should have been placed in a higher culpability and harm category under the Human Trafficking guideline.

The central issue was whether the judge’s categorisation and decision to suspend the sentence were outside the range properly open on the accepted basis of plea.

1. Leave to refer was refused. The sentence was lenient, but it was not shown to be unduly lenient.

2. The Solicitor General was entitled in principle to depart from the prosecution’s sentencing submissions below. However, the review had to begin with the accepted basis of plea. The prosecution had made a considered decision to accept it because of evidential difficulties. Having accepted it, the sentencing judge was bound to sentence on that basis.

3. The basis admitted neither knowledge of the victim’s living conditions nor a conspiracy extending beyond the offender and his father. It also confined the offender’s involvement to work arranged by his father on limited occasions. Although a plea to conspiracy acknowledged participation in wider exploitation, that admission added little to culpability in the particular circumstances.

4. It was therefore properly open to the judge to assess the offender as performing a limited function under direction, with limited harm, and to place the offending in category C4 of the relevant guideline. A category B assessment was arguable, but the judge’s favourable assessments remained available on the narrow admissions. The fact-sensitive exercise did not establish that either the custodial term or its suspension was unduly lenient.

5. The court also reaffirmed the procedural guidance in R v Goodyear [2005] EWCA Crim 888. A defence advocate seeking a sentence indication must ensure that the client understands the Attorney General’s entitlement to refer an unduly lenient sentence. Counsel had overlooked that duty, but the omission was immaterial because the indication did not promise suspension and the plea was entered after the judge had stressed the offence’s seriousness.

• Court of Appeal (Criminal Division): Leave to refer the sentence as unduly lenient was refused in [2022] EWCA Crim 540.

• Crown Court at Carlisle: On 4 February 2022, the offender received nine months’ imprisonment, suspended for 18 months, with a rehabilitation activity requirement following a guilty plea.