R v BRJ

In an Attorney General’s reference against an allegedly unduly lenient sentence, the question is not whether a different or longer sentence might also have been justified. A sentence is unduly lenient only if it falls outside the range that a judge, applying his or her mind to all relevant factors, could reasonably consider appropriate. The appellate court should assess the total sentence after adjustment for multiple offending, rather than focus narrowly on an individual starting point. For a dangerous offender sentenced to life imprisonment, the minimum term is punishment; continuing public protection is provided by the lifelong licence. Where the sentencing judge has properly balanced grave offending against significant mitigation and the sentence remains within the permissible range, the Court of Appeal will not interfere.

The offender pleaded guilty to 41 sexual and image-related offences involving three young victims. At the Crown Court at Cardiff, he was sentenced to life imprisonment with a minimum term of 13 years and 209 days.

The Solicitor General referred the sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988, submitting that the sentence was unduly lenient. The challenge focused on the sentencing judge’s starting point for the rape offences and the extent of the subsequent increase to reflect the overall offending. The central issue was whether the total sentence fell outside the range of sentences reasonably available to the sentencing judge.

Leave to refer refused. The Court of Appeal accepted that the offending was exceptionally grave. It included repeated rape of a very young child, serious offences against two further victims, circulation of indecent images, and possession of numerous serious images. The court also recognised significant mitigation, including early admissions, the voluntary disclosure of further offences, the absence of relevant previous convictions and the absence of contact offending for more than a decade.

1. The court’s focus was the notional determinate sentence underlying the minimum term. The finding of dangerousness, the necessity of life imprisonment, the credit for guilty pleas and the calculation of the minimum term were not challenged.
2. In a life sentence for a dangerous offender, future public protection is provided by the offender’s lifelong liability to licence conditions. The minimum term is the period required as punishment. The sentencing judge was entitled to balance the seriousness of the offending and the mitigation and to conclude that a notional determinate sentence of 28 years provided just and proportionate punishment.
3. The appellate court was not persuaded that a higher individual starting point was required. In any event, the proper focus was the total sentence after upward adjustment for the overall offending.
4. The court applied the principle stated by Attorney General’s Reference No 4 of 1989 [1990] 1 WLR 41 at page 46A: a sentence is unduly lenient only where it falls outside the range which a judge, applying his or her mind to all relevant factors, could reasonably consider appropriate. The possibility that a slightly longer sentence might also have been permissible was insufficient.
5. The total sentence fell within that range and was not unduly lenient. Leave to refer was refused. The Crown Court record was to be corrected so that the relevant count was identified as count 45 rather than count 46.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held that the sentence was not unduly lenient and refused leave to refer: [2023] EWCA Crim 351.
• Crown Court at Cardiff: On 4 January 2023, the offender was sentenced to life imprisonment with a minimum term of 13 years and 209 days.