R v Kevin Kenyon

On an Attorney General’s Reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only if it falls outside the range that a sentencing judge, properly considering all relevant factors, could reasonably regard as appropriate. The jurisdiction is exceptional and does not permit the Court of Appeal to resentence merely because it would have balanced aggravating and mitigating factors differently. The first-instance judge is particularly well placed to evaluate competing considerations. Leave should not be granted in borderline cases, and intervention is reserved for clear gross error. Even where undue leniency is established, the Court retains a discretion whether to increase the sentence.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer sentences imposed by the Crown Court at Bradford on an offender who pleaded guilty to sexual activity with a child and causing or inciting a child to engage in sexual activity. The Recorder imposed concurrent sentences, including an extended determinate sentence with a custodial term of 4 years 9 months and 15 days and an extended licence period of 3 years. The reference challenged the custodial term as unduly lenient, relying on the offender’s previous relevant conviction, offending on licence, the victim’s vulnerability, ejaculation and the absence of contraception. The central issue was whether the sentence fell outside the reasonable sentencing range so as to justify intervention.

Application refused. The Court of Appeal declined to grant leave under section 36 of the Criminal Justice Act 1988.

1. The governing test is whether the sentence fell outside the range of sentences which the first-instance judge, applying his mind to all relevant factors, could reasonably consider appropriate. Sentencing is an evaluative process, and the trial judge is particularly well placed to assess the weight of competing considerations. Leniency is not, by itself, a vice.
2. The jurisdiction is exceptional. Leave should not be granted in borderline cases. It is directed to cases in which the sentencing judge has fallen into gross error, rather than cases in which the Court of Appeal would have imposed a different sentence.
3. The Recorder correctly identified the category 1A guideline case, with a starting point of 5 years’ custody and a range of 4 to 10 years. He recognised the offender’s dangerousness and imposed an extended sentence. He elevated the notional custodial term to 6 years and correctly applied the 20 per cent reduction for the guilty pleas.
4. The Recorder had considered the relevant aggravating and mitigating matters and had taken no irrelevant matters into account. The Solicitor General’s submissions invited the Court to undertake its own assessment of matters that were essentially ones of evaluation and judgment for the sentencing court. That was not the function of a section 36 reference.
5. Although the Court retains a discretion to increase a sentence even after finding undue leniency, no question of exercising that discretion arose because the custodial term remained within the reasonable range and no gross error had been shown.

• Court of Appeal (Criminal Division): leave to refer the sentences under section 36 of the Criminal Justice Act 1988 was refused; the sentence was not increased.
• Crown Court at Bradford: the Recorder imposed an extended determinate sentence comprising 4 years 9 months and 15 days’ custody and an extended licence period of 3 years, with concurrent sentences on the relevant counts.