R v Lee Alan Hargrave

On a reference against an allegedly unduly lenient sentence, the Court of Appeal stressed that it does not sentence afresh. A sentence is unduly lenient only if it falls outside the range reasonably open to the sentencing judge, and the reference jurisdiction addresses exceptional cases involving gross error.

Where offences have been pleaded and presented as involving electronic storage of images rather than their initial creation, the sentencing judge may treat them accordingly, even if the court has power to take a different view of the categorisation. An early guilty plea, mitigation and a realistic prospect of rehabilitation may keep the resulting sentence within the guideline range and make suspension lawful. Leave to refer was refused.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer sentences imposed by the Crown Court at Guildford (HHJ Sellers). The respondent had pleaded guilty to two voyeurism offences and two offences of making indecent photographs of a child.

The total sentence was 13 months’ imprisonment, suspended for two years. The central questions were whether the image offences should have been treated as production rather than possession, whether they should have been the lead offences, and whether immediate custody was required.

Leave refused. The court applied the established principles summarised in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16. A section 36 reference is not a fresh sentencing exercise. The sentencing judge is particularly well placed to weigh competing factors. A sentence is unduly lenient only if it falls outside the range that the judge could reasonably consider appropriate. Leave is exceptional and the jurisdiction addresses cases involving gross error.

1. The court had power to take a different view of the correct characterisation of an offence, even though the prosecution had made a concession below. However, the procedural history was relevant. The judge was entitled to accept the way in which the case had been pleaded and presented. The image offences concerned the later electronic storage of images, rather than their initial creation by camera. The case therefore did not involve gross error.
2. Even if the image offences had been production offences, the respondent had pleaded guilty at the earliest reasonable opportunity and was entitled to full one-third credit. Having regard to mitigation, the resulting sentence could reasonably have fallen within the category C guideline range and could have been two years or less. The court rejected the submission that a sentence after trial above three years was the only reasonable outcome.
3. The sentencing judge had considered the relevant factors in the Imposition Guideline. The offence guideline also invited consideration of suspension in a category C images case. There was ample evidence of a real prospect of rehabilitation, together with other mitigating factors. The judge was reasonably entitled to suspend the sentence.

The court also recorded that the statutory reference scheme preserves a discretion to increase a sentence even where it is unduly lenient, and serves wider public-confidence purposes. Those observations were not necessary to the result. The application for leave under section 36 was refused.

• Court of Appeal (Criminal Division) — On a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988, leave to refer the sentence as unduly lenient was refused.
• Crown Court at Guildford — HHJ Sellers sentenced the respondent on 2 July 2025 to a total of 13 months’ imprisonment, suspended for two years, with rehabilitation and unpaid-work requirements.
• Staines Magistrates’ Court — The respondent pleaded guilty to two indecent-image offences and was committed for sentence under section 18 of the Sentencing Act 2020.