R v Levi George

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 first-instance judge. Leave to refer should be granted only in exceptional cases involving gross error, not borderline disagreement. The Court of Appeal must respect the sentencing judge’s evaluative role and retain discretion over any increase. Totality remains relevant where the offender is already serving an unrelated sentence, although unavoidable overlap may be considered. A concurrent sentence may be left unchanged while the lead sentence is increased where necessary to reflect the overall gravity of the offending.

R v Levi George concerned an Attorney General’s Reference under section 36 of the Criminal Justice Act 1988. After a jury trial at the Crown Court at Norwich, the offender was convicted of causing grievous bodily harm with intent under section 18 of the Offences against the Person Act 1861 and child cruelty under section 1(1) of the Children and Young Persons Act 1933. He received nine years’ imprisonment for the section 18 offence and two years concurrently for child cruelty. The issue was whether the overall sentence was unduly lenient, having regard to the gravity of the offending, concurrency, totality and an unrelated sentence already being served.

The court granted leave under section 36 of the Criminal Justice Act 1988 and allowed the reference.

1. The governing principles were those summarised in Attorney General’s Reference (R v Azad) [2021] EWCA Crim 1846, [2022] 2 Cr App R(S) 10 at [72]. The first-instance judge is well placed to weigh competing sentencing factors. A sentence is unduly lenient only if it falls outside the range reasonably considered appropriate. Leave is exceptional and is not granted in borderline cases. The jurisdiction addresses gross error. The court’s role is not to retake the sentencing decision as if it were the sentencing court, and mercy or compassion does not necessarily constitute undue leniency. Those principles reflected the earlier guidance of Lord Lane CJ in Attorney General’s Reference (No 4 of 1989) (1990) 90 Cr App R 366 at 371.
2. The court accepted that gratuitous degradation had not been proved to the criminal standard and that the sentencing judge was entitled to make her other factual findings. Nevertheless, the section 18 offence was so serious that it fell towards the top of the guideline range, if not beyond it. A sentence exceeding nine years was required for that offence alone.
3. The two-year sentence for child cruelty was properly concurrent, but the lead sentence had to be increased to reflect the overall gravity of the offending while respecting totality. Totality was not an arithmetical exercise.
4. Totality remained relevant even though the offender was already serving a sentence for an unrelated drugs offence. The court had to consider the sentence that would have been appropriate had the matters been dealt with together and ensure that the total sentence was just and proportionate. It could also recognise the inevitable overlap in custody between the unrelated sentence and the sentences imposed for the index offences.
5. The nine-year sentence on the section 18 count was quashed and replaced with 12 years’ imprisonment, deemed effective from 23 June 2023. The two-year child-cruelty sentence remained concurrent, making the total sentence 12 years.

• Court of Appeal (Criminal Division) — Leave granted under section 36 of the Criminal Justice Act 1988. The nine-year sentence for the section 18 offence was quashed and a 12-year sentence substituted. The two-year child-cruelty sentence remained concurrent. [2023] EWCA Crim 1492.
• Crown Court at Norwich — On 23 June 2023, Her Honour Judge Robinson imposed nine years’ imprisonment for the section 18 offence and two years concurrently for child cruelty.