R v Krunal Prajapati

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 available to the sentencing judge. The appellate court must not conduct the sentencing exercise afresh. Mercy does not itself make a sentence unduly lenient.

In unlawful act manslaughter, the combination of high-culpability factors may justify categorisation as very high culpability, but it does not compel that result. The sentencing court must balance the factors in the circumstances of the offence and avoid a mechanistic application of the guideline.

The offender was acquitted of murder but convicted of manslaughter after his 11-week-old daughter died from catastrophic injuries inflicted while he was alone with her. On 12 January 2024, the Crown Court at Snaresbrook sentenced him to ten years’ imprisonment.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the judge should have treated the combination of subjective intent to cause serious harm short of grievous bodily harm and an objectively obvious high risk of death or grievous bodily harm as requiring a higher culpability category or a substantially longer sentence.

1. Application refused. The ten-year sentence was merciful but was not unduly lenient. It remained within the range reasonably open to the sentencing judge.

2. The court applied the established section 36 principles. A sentence is unduly lenient only where it falls outside the range the first-instance judge could reasonably regard as appropriate. Leave should be granted only exceptionally, and the court retains a discretion even where undue leniency is established. It must not simply resentence as though it were the trial court; mercy is a virtue and does not by itself establish undue leniency.

3. The sentencing judge had found two high-culpability features under the unlawful act manslaughter guideline: an intention to cause harm just short of grievous bodily harm, and an unlawful act carrying an obvious high risk of death or grievous bodily harm. Those findings did not require the case to be elevated from category B to category A. The guideline provides that very high culpability may be indicated by an extreme factor or a combination of category B factors. It requires an overall, fact-sensitive assessment and warns against mechanical use of the factors.

4. Attorney General's Reference (R v Parry) [2023] EWCA Crim 421 did not dictate a different conclusion. Its factual setting was markedly different. Although that decision recognised that subjective intent and objective risk are not necessarily the same consideration, its category-A conclusion could not be applied outside its context. The court agreed with its warning against overly mechanistic sentencing.

5. The judge had heard all the trial evidence and was particularly well placed to assess intention, risk, mitigation and aggravation. Her careful category-B assessment involved no gross error. Accordingly, the Solicitor General’s application under section 36 was refused.

• Court of Appeal (Criminal Division): The Solicitor General’s application under section 36 of the Criminal Justice Act 1988 was refused: [2024] EWCA Crim 464.

• Crown Court at Snaresbrook: The offender was acquitted of murder and convicted of manslaughter on 24 November 2023. On 12 January 2024, May J imposed ten years’ imprisonment.