R v Kelechukwu Orji

A sentence is unduly lenient only where it falls outside the range which a judge applying all relevant factors could reasonably regard as appropriate. When sentencing several serious offences, the total sentence must reflect the entirety of the offending, including overall harm, culpability, aggravating factors and mitigation, while remaining just and proportionate.

Where consecutive terms would be disproportionate, the court may impose the appropriate overall sentence on a lead count. It must then apply a sufficient uplift to reflect the other serious offences. Good character carries little weight in exceptionally grave sexual offending.

R v Kelechukwu Orji concerned a reference by His Majesty’s Solicitor General under section 36 of the Criminal Justice Act 1988. The offender had been convicted at Lewes Crown Court of two rapes, attempted rape, assault by penetration and sexual assault committed against AB, who had been living in his household.

After conviction, the offender absconded to Nigeria. He was sentenced in his absence to concurrent terms, producing a total of 10 years’ imprisonment. The Solicitor General submitted that the sentence was unduly lenient because it failed adequately to reflect the grave final incident and the earlier sexual offending. The central issue was whether that overall sentence fell outside the reasonable range.

1. The court granted leave for the reference and held that the total sentence of 10 years’ imprisonment was unduly lenient. Applying Attorney General's Reference No 1 of 1989, 1990 1 WLR 41, the question was whether the total sentence fell outside the range reasonably open to a judge who considered all relevant factors. It did.

2. Proper weight had to be given to the trial judge’s feel for the case. That consideration could not overcome the seriousness of the offending. The final rape alone justified a sentence of 12 years’ imprisonment. The judge erred in treating shallow penetration as mitigation, and the offender’s good character carried little weight given the gravity of the offences.

3. The assault by penetration during the final incident was a separate serious offence. The earlier rape and attempted rape also required recognition. The sentencing judge had not sufficiently reflected those offences in the sentence imposed for the lead count.

4. Applying the Sentencing Council Totality Guideline, the court held that consecutive sentences for the three separate incidents would have been disproportionate. The correct method was therefore to impose an overall sentence on the lead offence. A very substantial uplift was nevertheless necessary so that the lead sentence reflected all of the offending behaviour.

5. The court quashed the 10-year sentence for count 10 and substituted 15 years’ imprisonment. The other concurrent sentences were unaffected. It declined to alter the Sexual Harm Prevention Order: its existing terms were within reasonable bounds, and a reference of this kind was not an occasion to adjust a properly made order.

• Court of Appeal (Criminal Division): Allowed the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988; quashed the 10-year sentence on count 10 and substituted 15 years’ imprisonment ([2024] EWCA Crim 879).
• Crown Court at Lewes: Convicted the offender on 22 November 2023 of two rapes, attempted rape, assault by penetration and sexual assault. On 21 February 2024, sentenced him in his absence to concurrent terms totalling 10 years’ imprisonment.