R v Peter McCann

For a reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only if it falls outside the range a sentencing judge could reasonably impose. Leave is exceptional and the jurisdiction addresses gross error, but the Court retains discretion whether to increase a sentence even after finding undue leniency. An exceptional combination of youth, immaturity, unjustified delay, rehabilitation and subsequent good conduct may justify leaving a suspended sentence undisturbed where immediate custody would not serve the public interest. A technical error in imposing imprisonment instead of detention in a young offender institution under section 262 of the Sentencing Code does not, without more, require the reference to be allowed.

After pleading guilty in the Crown Court at Maidstone, the respondent was sentenced to two years’ imprisonment suspended for two years for causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, with a concurrent suspended sentence for assault occasioning actual bodily harm under section 47. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988, contending that the sentence was unduly lenient. The central issues were whether the notional sentence had been reduced too far and whether suspension was appropriate given the respondent’s age, immaturity, delay, rehabilitation and changed circumstances. The Court also considered the technical legality of imposing imprisonment rather than detention in a young offender institution.

1. Disposition. The Court granted leave to refer the sentence under section 36 of the Criminal Justice Act 1988, but exercised its discretion not to increase or otherwise interfere with the sentence.
2. Governing principles. The Court reaffirmed that the first-instance judge is particularly well placed to assess competing sentencing factors. A sentence is unduly lenient only if it falls outside the range which that judge could reasonably consider appropriate. Leave should be granted only in exceptional circumstances and not in borderline cases, since the jurisdiction addresses gross error. The Court also applied the principle in Attorney-General’s Reference (No 4 of 1989) (1990) 90 Cr App R 366 that, even where a sentence is unduly lenient, the Court retains discretion whether to exercise its power. The purposes of the jurisdiction, including public confidence in sentencing, were also considered by reference to Attorney-General’s Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41.
3. Application of the discretion. The Court considered that it was difficult to justify reducing the notional sentence after trial to three years. It should arguably have been at least three and a half or four years, which would have produced a sentence exceeding the two-year maximum capable of suspension after credit for the guilty pleas. Nevertheless, the exceptional combination of the respondent’s youth and immaturity, lengthy delay, lack of further serious offending, rehabilitation and compliance with the suspended sentence order justified leaving the sentence undisturbed. The Court had to consider the circumstances existing at the date of the reference, including the effects of immediate custody on family life, employment and accommodation. Immediate imprisonment would not have served the public interest.
4. Technical defect. Because the respondent was aged 20 at the date of conviction, section 262 of the Sentencing Code required detention in a young offender institution rather than imprisonment. The sentence pronounced was therefore unlawful because of a technical defect. Applying the approach in R v Stocker [2013] EWCA Crim 1993; [2014] 1 Cr App R(S) 18, the Court held that the purely technical defect did not require the reference to be allowed.

1. Court of Appeal (Criminal Division): On the reference under section 36 of the Criminal Justice Act 1988, leave was granted but the suspended sentence was left undisturbed. The Court recorded that the sentence was technically unlawful under section 262 of the Sentencing Code, without allowing the reference on that basis.
2. Crown Court at Maidstone: HHJ St John-Stevens imposed a two-year suspended sentence for the section 18 offence and a concurrent four-month suspended sentence for the section 47 offence.