R v Frankie Maughan

On a reference 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 sentencing judge. Leave should be granted only in exceptional, non-borderline cases involving gross error. In cases involving multiple offences and an existing sentence, the court must apply totality proportionately. It should not simply deduct the earlier sentence from a notional aggregate sentence. Robbery involving a bladed article, threatened violence, serious psychological harm or serious property disturbance may justify a high harm category. Even where category 2 is selected, significant aggravating features and other offending may require a substantial uplift. Leave was granted and the robbery sentence was increased to 4½ years; the concurrent fraud sentence was unchanged.

The respondent pleaded guilty at the Crown Court at Warwick to robbery and fraud. He had targeted a vulnerable victim, threatened him with a machete to obtain his bank card and PIN, and then used the card over several weeks. He was also subject to an earlier sentence for serious violent offences and had been recalled to custody.

The sentencing judge treated the robbery as category 2A, imposed 20 months’ imprisonment for it, and imposed 12 months for fraud concurrently. He considered that dealing with all the offences together would probably have produced a sentence of no more than six years. The Solicitor General sought leave to refer the sentences under section 36 of the Criminal Justice Act 1988, arguing that the sentence was outside the reasonably available range and that excessive weight had been given to totality. The central issue was whether the sentence was unduly lenient.

Leave was granted and the sentence was increased.

1. Under section 36 of the Criminal Justice Act 1988, the Court applied the principles summarised in Attorney’s-General Reference (Azad) [2021] EWCA Crim 1846; [2022] 2 Cr App R(S) 10. The first-instance judge is well placed to assess competing factors. A sentence is unduly lenient only where it falls outside the reasonably appropriate range. Leave is exceptional and is not granted in borderline cases. The provision addresses cases of gross error.
2. The totality principle requires the overall sentence to reflect all offending, its harm and culpability, and the relevant aggravating and mitigating factors, while remaining just and proportionate. Where an offender is already serving a sentence, the court should first determine the proper sentence for the current offences and then decide what allowance, if any, should be made for the earlier sentence. The exercise is not a simple deduction of the earlier sentence from a notional aggregate.
3. The robbery guideline required consideration of culpability and harm. The production of a bladed article with threatened violence placed culpability in category A. The circumstances could have supported category 1 harm because of the victim’s psychological harm and the soiling and damage to his home. Even if category 2 was adopted, a significant uplift was required for the aggravating features and the fraud offence.
4. If all matters had been sentenced together, the robbery would have been the lead offence and the sentence would have had to reflect the three serious violent offences and the fraud. The minimum appropriate sentence would have been 10 years after trial, reduced to 7½ years for the guilty pleas. The respondent had served 18 months, treated as equivalent to three years for totality purposes. The proper sentence for the present offences was therefore at least 4½ years. The Court substituted that sentence for count 1 and left the 12-month concurrent sentence for fraud unchanged.

1. Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted and a sentence of 4½ years’ custody was substituted for the robbery offence. The concurrent fraud sentence was unchanged.
2. Crown Court at Warwick: On 19 June 2024, the respondent was sentenced to 20 months’ imprisonment for robbery and 12 months’ imprisonment for fraud, concurrent.