R v Anandarajah Bremakumar

Under Criminal Justice Act 1988, appellate intervention for undue leniency requires more than a sentence that another judge might have made higher. The sentence must be both lenient and unduly so, involving a substantial departure from applicable sentencing norms. Where concurrent sentences are imposed for multiple offences, the aggregate sentence must reflect the offender’s overall criminality and satisfy the totality requirement in the applicable guideline. A lead sentence below the starting point for one offence may therefore be unduly lenient when it fails to reflect additional offences and escalating conduct.

The Solicitor General referred a sentence under section 36 of the Criminal Justice Act 1988. The offender had been convicted of four counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003, involving repeated assaults on a 13-year-old girl over three weeks.

The sentencing judge imposed concurrent sentences of 30 months’ imprisonment on each count. The issue was whether that sentence was unduly lenient because it failed to reflect the additional offending and the totality principle.

1. The Reference was allowed. The sentence on count 4 was quashed and replaced by four years’ imprisonment. The overall sentence became four years, with all other elements undisturbed. The unlawful victim surcharge was also quashed.

2. The statutory test for intervention is stringent. A reference under section 36 of the Criminal Justice Act 1988 serves to address gross error, substantial departure from ordinary sentencing norms, public concern and public confidence. Following R v Johnson [2002] EWCA Crim 1418, the court emphasised that the sentence must be not merely lenient but unduly so. The fact that another judge might have imposed a higher sentence is insufficient. The court also applied the caution in R v Mohammed Arfan [2022] EWCA Crim 1416 that sentencing is an art rather than a science.

3. Concurrent sentences were permissible because the offences formed a pattern of escalating conduct over a short period. However, the totality principle still required the final sentence to be just and proportionate to the overall offending, as required at step 6 of the Sentencing Council Guideline.

4. For count 4, a three-year sentence was appropriate and could be regarded as generous, given the gross abuse of trust, severe psychological harm, calculation and planning. Good character and health provided only limited mitigation, particularly because the offender’s community standing created the trust that facilitated the offending.

5. The additional offences required an uplift of at least one year. Counts 2 and 3 involved category 2A offending, while count 1 formed part of the escalating course of criminality. A sentence of 30 months overall was materially below the starting point for a single category 2A offence and was therefore unduly lenient. The court found comparisons with R v Naish [2010] EWCA Crim 1005 and Attorney General’s Reference (R v Ivan) [2020] EWCA Crim 301 unhelpful because of material differences in the sentencing regimes, pleas, ages and offending categories.

1. Court of Appeal (Criminal Division) — [2023] EWCA Crim 545: the Attorney General’s Reference was allowed. The sentence on count 4 was quashed and replaced with four years’ imprisonment; the victim surcharge was quashed as unlawful.

2. Crown Court: following conviction at trial, the offender received concurrent sentences of 30 months’ imprisonment on each count, together with a Sexual Harm Prevention Order and a Restraining Order.