R v Janzeeb Saultan

On an Attorney General’s reference, a sentence is unduly lenient only if no reasonable judge could have imposed it. Where mitigation takes the sentence below a guideline category range, the weight given to matters such as age, maturity, absence of previous convictions, a fictional victim and delay involves sentencing judgment, not strict arithmetic. The Court of Appeal should intervene only for clear error. A sentence may be lenient without being unduly lenient. If the final sentence is reasonably open to the sentencing judge, it may be suspended where the imposition guideline provides a proper basis.

An offender aged 19 to 20 engaged in sexual communications on Facebook with an adult posing as a 12-year-old. He pleaded guilty to attempted sexual communication with a child and attempting to cause a child under 13 to engage in sexual activity. The Crown Court imposed two years’ imprisonment, suspended for two years, with a rehabilitation activity requirement. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the sentence, before guilty-plea credit, was one that no reasonable judge could have imposed.

1. Disposition. The Court refused leave on the Attorney General’s reference. The sentence was lenient, but it was reasonably open to the sentencing judge and was not unduly lenient.
2. Applicable threshold. The question under section 36 of the Criminal Justice Act 1988 was whether no reasonable judge could have imposed the sentence. The Attorney General accepted that a sentence below the guideline category range was reasonably available, but argued that the sentence before guilty-plea credit could not reasonably have been as low as 32 months.
3. Sentencing judgment. The sentencing judge was entitled to take account of the offender’s age, lack of maturity, absence of previous convictions, the fact that the apparent victim was not real, and the delay in proceedings together with the offender’s rehabilitative steps. The use of these factors was consistent with the approach described in Clarke and others [2018] EWCA Crim 185 and the guidance referred to in Reed [2021] EWCA Crim 572.
4. Appellate review. Reductions for several factors are not governed by strict mathematical calculation. They involve the sentencing judge’s assessment of competing considerations. The Court would require clear error before interfering, particularly where an experienced judge had explained the reasoning clearly and logically. No part of the reduction process was open to proper criticism.
5. Suspension and leniency. Once the judge had reached the final sentence, the imposition guideline supplied a proper basis for suspension. The principle stated in Attorney General’s Reference No 4 of 1989 [1990] 1 WLR 41 supported the conclusion that sentencing involves judgment rather than exact science and that leniency is not itself a vice.

• Crown Court: On 19 January 2024, the offender was sentenced to two years’ imprisonment, suspended for two years, with a rehabilitation activity requirement.
• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was refused. [2024] EWCA Crim 347