His Majesty's Attorney General v Navid Iqbal

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 after consideration of all relevant matters. It is insufficient that the appellate court would have imposed a longer sentence. Sentencing guidelines are relevant, but sentencing remains evaluative and the trial judge is usually best placed to weigh aggravation and mitigation.

Whether a victim was particularly vulnerable, or was specifically targeted as such, depends on the full circumstances. An appellate court should not infer either matter from a limited account where the sentencing judge heard the evidence and made no such finding. A generous sentence is not necessarily unduly lenient.

The Attorney General applied for leave to refer as unduly lenient a sentence imposed in the Crown Court at Inner London. The offender had been convicted of assault by penetration contrary to section 2 of the Sexual Offences Act 2003, and battery against an emergency worker.

He received two years’ imprisonment for the sexual offence and three months’ imprisonment concurrently for the battery. Both sentences were suspended for two years. The Attorney General contended that the sentencing judge had erred in categorisation and had insufficiently weighted aggravating features against the offender’s mental health mitigation. The central issue was whether the sentence was outside the range reasonably open to the sentencing judge.

1. Application for leave to refer refused. The two-year suspended sentence was lenient, but not unduly lenient within section 36 of the Criminal Justice Act 1988.

2. The court could not conclude that the victim was particularly vulnerable merely because he was asleep while sunbathing among friends and others in a crowded public place. The sentencing judge, who had heard the trial evidence, was better placed to assess the circumstances. The same applied to the suggested culpability factor of specific targeting of a particularly vulnerable victim. A lone sleeping victim might meet the criterion in a different factual setting: R v Husband [2021] EWCA Crim 1240.

3. Applying Attorney General’s Reference No 4 of 1989 [1991] 1 WLR 41, the court held that a sentence is unduly lenient only where it falls outside the range which a judge applying the relevant factors could reasonably regard as appropriate. The appellate court must not increase a sentence simply because it would have sentenced differently. The sentencing judge’s opportunity to observe the offender and victim was material to the assessment of the offender’s diagnosed mental health condition and mitigation.

4. There was no error of principle in categorisation and no gross error in weighing aggravating and mitigating features. The proposed difference between the imposed sentence and a sentence a little over three years was also the type of case ordinarily unsuitable for a section 36 reference, consistently with R v Edwards [2012] EWCA Crim 2746. The application was therefore refused.

• Court of Appeal (Criminal Division): Refused the Attorney General’s application under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.
• Crown Court at Inner London: Following conviction after trial, imposed concurrent sentences of two years’ imprisonment for assault by penetration and three months’ imprisonment for battery against an emergency worker, both suspended for two years.