R v Alfie Baker

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. The appellate court must not substitute its own sentencing assessment merely because it would have imposed a different sentence.

An offender’s eighteenth birthday is not a decisive boundary for sentencing. Their continuing immaturity, youth and relevant mental health conditions may properly affect culpability and the length of an unavoidable custodial sentence. A sentence may be lenient without being unduly lenient where the judge has permissibly balanced those matters against the gravity and aggravating features of the offending.

The Solicitor General applied for leave to refer as unduly lenient a total sentence of 46½ months’ detention in a young offender institution imposed at the Crown Court at Maidstone. The offender, who was 18 when he committed the offences, had pleaded guilty to offences including aggravated burglary, assaults, burglary involving the theft of puppies, and possession of cannabis.

The application alleged that the sentencing judge gave insufficient weight to aggravating features and failed to apply totality properly, particularly by ordering the sentences to run concurrently. The central issue was whether the total sentence fell outside the range reasonably open to the judge under section 36 of the Criminal Justice Act 1988.

1. The application for leave was refused. The total sentence was lenient but not unduly lenient. The question under section 36 of the Criminal Justice Act 1988 was not what sentence the Court of Appeal would itself have imposed. It was whether the sentence imposed fell outside the range reasonably open to the sentencing judge.
2. The judge had given detailed reasons and had considered both aggravating and mitigating features. The Court accepted that the offending was serious and that a fully mature adult would have received substantially longer sentences. It nevertheless held that the judge was entitled to give substantial weight to the offender’s age, lack of maturity, mental health difficulties and traumatic background when fixing the overall term.
3. R v Ghafoor [2002] EWCA Crim 1857 did not govern the case. Its principle concerned an offender who committed an offence at 17 but was sentenced after turning 18. Here, the offender was already 18 when all the offences were committed.
4. The Court applied the principle in Attorney General's Reference (R v Clarke) [2018] EWCA Crim 185 that adulthood at 18 is not a rigid sentencing boundary. It also applied R v PS and Others [2019] EWCA Crim 2286: a mental health condition may reduce culpability and, where custody is unavoidable, may bear on the appropriate length of sentence.
5. The concurrent structure and resulting total sentence were reasonably open to the judge on the particular facts. The Court therefore refused leave to make the reference.

• Court of Appeal (Criminal Division) — Refused the Solicitor General leave to refer the sentence as unduly lenient: [2024] EWCA Crim 413.
• Crown Court at Maidstone — On 16 February 2024, imposed a total of 46½ months’ detention in a young offender institution.