R v Colin Robson-Durrance

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, applying all relevant factors, could reasonably consider appropriate. The jurisdiction is not a power to substitute a different sentence merely because the Court would have imposed more. Even where the threshold is met, the Court retains discretion not to increase the sentence.

For attempted sexual offending involving a child decoy, the intended sexual activity is assessed first, followed by a fact-sensitive reduction for the absence of a real victim. No further reduction is made merely because the offence was attempted. A full guilty-plea reduction may be justified where the circumstances support it.

The Solicitor General referred three sentences under section 36 of the Criminal Justice Act 1988. The respondent had pleaded guilty at Leicester Crown Court to attempting sexual communication with a child, attempting to incite a child to engage in sexual activity, and attempting to cause a child to watch a sexual act. The sentencing judge imposed concurrent sentences, producing two years’ imprisonment suspended for two years.

The reference challenged the reductions made for the absence of a real child victim, mitigation and the guilty pleas. The central questions were whether the sentence was unduly lenient and, if so, whether the Court should exercise its discretion to increase it.

Decision

Leave to refer the sentences was granted. The Court held that the sentence was unduly lenient but exercised its discretion not to increase it.

1. Section 36 principles. The Court followed the principles in Attorney General's Reference (No 4 of 1989) [1990] 90 Cr.App.R 366. A sentence is unduly lenient only where it falls outside the range that a sentencing judge, applying all relevant factors, could reasonably consider appropriate. The Court cannot increase a sentence merely because it would have imposed a different sentence. Even after finding undue leniency, the Court retains a discretion whether to increase the sentence.
2. Sentencing of offending involving a decoy. The Court applied the two-stage approach in R v Privett [2020] EWCA Crim 557. The court first identifies the sexual activity intended and then makes an appropriate downward adjustment to reflect the absence of a real victim or actual harm. The Court accepted that the sentencing judge was entitled to make such an adjustment.
3. Application. The five-year starting point for the lead offence, together with the permissible adjustment for the decoy, the respondent’s age, lack of previous convictions, mitigation and full one-third guilty-plea credit, did not justify reducing the notional sentence after trial to three years. Consequently, a two-year sentence after credit was outside the reasonable range and was unduly lenient.
4. Discretion not to increase. Following Attorney General's Reference (Egan) [2022] EWCA Crim 1751, the Court considered the later circumstances. The respondent had complied with a mental-health appointment, had been assessed as having complex needs, was vulnerable, and had begun life subject to a suspended sentence and protective orders. In those unusual circumstances, increasing the sentence was not the right course.

• Court of Appeal (Criminal Division): Granted leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, but declined to increase it.
• Crown Court at Leicester: On 14 July 2025 imposed concurrent sentences resulting in two years’ imprisonment suspended for two years.