R v Aiden Christopher Drew

On a reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only where it falls outside the range reasonably open to the sentencing judge. Leave is confined to exceptional cases involving gross error, rather than borderline disagreement about sentence. An unsolicited advance sentence indication must comply with the Goodyear procedure. It cannot promise suspension, and it does not restrict the Law Officers’ power to refer a sentence. Guilty plea credit must reflect the stage at which the plea was entered. Concurrent sentences must still represent the total gravity of all the offending, without double counting. For serious domestic abuse involving controlling behaviour and intentional strangulation, substantial aggravation and immediate custody may be required.

The respondent pleaded guilty to controlling or coercive behaviour in an intimate relationship and intentional strangulation. The Crown Court at Truro imposed concurrent suspended sentences of two years and 18 months respectively. The Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988, arguing that the sentencing judge had misapplied the guilty plea reduction, failed to reflect the combined seriousness of the offences, and improperly relied on unsolicited indications that custody would be suspended.

The central issues were whether the sentences were unduly lenient, whether the advance indications complied with the applicable procedure, and what sentences should properly be substituted.

1. The Court granted leave to refer the sentences. Applying the principles stated in Attorney-General’s Reference (R v Azad) [2021] EWCA Crim 1846, [2022] 2 Cr App R(S) 10, Attorney-General’s Reference No 4 of 1989 (1990) 90 Cr App R(S) 366, and Attorney-General’s Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418, [2003] 1 Cr App R(S) 41, the Court’s function was not to resentence merely because it would have imposed a different sentence. The threshold was gross error producing a sentence outside the reasonably available range.

2. The sentencing judge had not followed the procedure in R v Goodyear [2005] EWCA Crim 888, [2005] 2 Cr App R 20, now reflected in rule 3.31 of the Criminal Procedure Rules 2020 and paragraphs 9.4.1 to 9.4.9 of the Criminal Practice Direction 2023. An indication should be sought by the defendant, given only in the prescribed plea circumstances, and expressed as the maximum sentence following a guilty plea at that stage. The defence advocate must ensure that the defendant understands that he should plead guilty only if guilty and that the Law Officers may refer an unduly lenient sentence. Such a procedure does not affect the referral power.

3. It was clearly wrong to allow the full one-third reduction for guilty pleas. The respondent had entered no plea in the Magistrates’ Court and had pleaded not guilty at the PTPH. The appropriate reduction was no more than 25 per cent.

4. The starting point of 2½ years for the controlling or coercive behaviour offence was correct, but an uplift was required for the numerous aggravating features and the additional strangulation offence. Concurrent sentences were permissible, but the total sentence had to reflect the overall gravity and avoid double counting. The guidance in R v Cook [2023] EWCA Crim 452, [2023] 4 WLR 71, supported a minimum 18-month sentence for the strangulation offence before aggravation.

5. The Court assessed the minimum sentence after trial at 40 months. Allowing 25 per cent credit produced 30 months’ imprisonment on count 1. The 18-month sentence for intentional strangulation remained concurrent but had to be immediate. The Crown Court sentences were quashed and substituted, with surrender to custody ordered.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the Court granted leave, quashed the sentences and substituted immediate custodial sentences: [2024] EWCA Crim 1537.
• Crown Court at Truro: On 10 September 2024, HHJ Linford imposed concurrent suspended sentences of two years and 18 months for controlling or coercive behaviour and intentional strangulation.