R v Ian James Wharmby & Ors

For an Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, appellate intervention requires a sentence that is not merely lenient but unduly lenient. The threshold is high, and sentencing remains an evaluative exercise.

For firearm conspiracies, the statutory minimum sentence provisions do not apply, but the Firearms Offences Guideline remains relevant by analogy, with reduced normative force. Courts must assess the offender’s individual role, culpability, aggravating and mitigating features, and the wider criminality. Consecutive sentences will ordinarily be appropriate for unrelated drug and firearm offending. Guilty plea credit depends on when the plea is indicated, not merely entered.

On 30 March 2023 the Recorder of Manchester sentenced Wharmby to three years’ imprisonment, Walker to six years and Smith to six years and six months. The Solicitor General sought leave to refer the sentences under section 36 of the Criminal Justice Act 1988, alleging undue leniency.

The references challenged the categorisation of the firearm conspiracies under the Firearms Offences Guideline, the assessment of culpability and overall seriousness, the use of concurrent sentences for Wharmby’s firearm and drug offences, and the one-third guilty plea reduction. The central issue was whether the sentences crossed the high threshold for appellate intervention.

1. Threshold for intervention. The Court granted leave and applied the established high threshold for an Attorney-General’s reference. A sentence must be more than lenient: it must be unduly so. The court respected the sentencing judge’s advantage in assessing the evidence and the circumstances of the offending.
2. Applicable sentencing framework. The statutory minimum five-year provisions in section 311 and Schedule 20 of the Sentencing Act 2020 did not apply to conspiracy offences. The Firearms Offences Guideline was nevertheless relevant under section 59, by analogy with R v Kazim Ali Khan & Ors [2013] EWCA Crim 800; [2014] 1 Cr App R(S) 10, although with less normative force. The offender’s individual role had to be assessed, while participation in wider criminal activity could aggravate the offence.
3. Wharmby. The judge was entitled to place the firearm offending in category B3 because the court could not be sure of a high risk of severe harm and there was no finding that Wharmby knew the firearm was loaded. The loaded weapon and planning justified an uplift from the two-year starting point. Its prohibited status, previous use and discharge in criminality, and the use of EncroChat were further aggravating features. The firearm and drug offences arose from unrelated offending. Under the Totality Guideline, consecutive sentences were therefore appropriate.
4. Walker and Smith. Possession of a firearm with intent to endanger life was not automatically category B2. The judge had not concluded that Smith intended to shoot an individual, so the category B3 classification was not disturbed. The seven-year starting point required substantial increases because of the significant roles, loaded firearm, planning, conspiracy, concealment through EncroChat and the prohibited firearm. Smith’s recent imitation-firearm conviction justified a further distinction. Sentences below eight years for Walker and eight years and six months for Smith were unduly lenient.
5. Guilty plea credit and orders. Under the applicable Guideline, one-third credit is ordinarily available only where a plea is indicated at the first stage. Otherwise the maximum is one-quarter, subject to rare exceptional circumstances. Applying R v Plaku & Ors [2021] EWCA Crim 568; [2021] 4 WLR 82, Wharmby’s indication of likely guilt was not unequivocal and his plea was entered much later. His credit could not exceed 25 per cent. All three references were allowed. Wharmby’s sentence was replaced by consecutive terms of 32 months for the firearm offence and 32 months for the cocaine offence. Walker’s sentence was increased to eight years and Smith’s to eight years and six months.

• Court of Appeal (Criminal Division): On 27 June 2023, all three references under section 36 of the Criminal Justice Act 1988 were allowed and the sentences were increased.
• Crown Court at Manchester: On 30 March 2023, the Recorder of Manchester sentenced Wharmby to three years’ imprisonment, Walker to six years and Smith to six years and six months.