R v Sasha Kaydee Ball

A reference under section 36 of the Criminal Justice Act 1988 is not a resentencing exercise. A sentence is unduly lenient only where it falls outside the range reasonably available to the first-instance judge. Intervention is reserved for exceptional, non-borderline cases involving gross error. The sentencing judge is best placed to weigh competing factors and select a just and proportionate sentence. A sentencing court has discretion to take account of time spent in custody following recall for another offence. That discretion requires a measured, fact-sensitive approach, but an arguable error on that issue alone will not justify intervention. A sentence may be lenient without being unduly lenient.

The respondent pleaded guilty in the Crown Court at Truro to possession of cocaine with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971, and possessing criminal property, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002. The Recorder imposed a total sentence of 1041 days' imprisonment, concurrent with a sentence following recall for earlier offending.

The Attorney General sought leave to refer the sentence under section 36 of the Criminal Justice Act 1988, arguing that the sentence was unduly lenient because of the assessment of culpability, insufficient weight given to aggravating features, excessive mitigation, and the reduction for recalled custody. The central issue was whether the sentence fell outside the reasonable range available to the sentencing judge.

The Court refused the Solicitor General's application for leave to refer the sentences. The total sentence was lenient, but it was not unduly lenient.

1. The principles governing a reference under section 36 of the Criminal Justice Act 1988 were well established. As summarised in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16, the first-instance judge is particularly well placed to assess competing factors. A sentence is unduly lenient only if it falls outside the range which that judge might reasonably consider appropriate. Leave should be granted only in exceptional circumstances and not in borderline cases. The jurisdiction addresses gross error.
2. The reference procedure is not an opportunity for the Court of Appeal to resentence. Consistently with Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R(S) 366 and R v BRJ [2023] EWCA Crim 351, the question is not what this Court would have imposed at first instance, nor what it would have done on an appeal alleging that a higher sentence was manifestly excessive. Its role is to correct a sentence that falls below the reasonable range.
3. The Recorder had to assess the respondent's role, maturity, previous convictions and mitigation. Those were primarily matters for her judgment. The Court was not persuaded that she had fallen into gross error or selected a sentence outside the reasonable range.
4. The strongest point concerned the 54-day reduction for custody following recall. The sentencing court had discretion in that respect. Even if the reduction were questionable, it would not, standing alone, make the total sentence unduly lenient or justify intervention.

• Court of Appeal (Criminal Division): In [2026] EWCA Crim 121, the Court refused the Attorney General's application for leave to refer the sentences under section 36 of the Criminal Justice Act 1988.
• Crown Court at Truro: On 23 September 2025, Ms Recorder Gates sentenced the respondent to a total of 1041 days' imprisonment after guilty pleas to two offences.