R v Cole Riley

On a reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only if it falls outside the range that a properly directed first-instance judge could reasonably impose. Intervention requires exceptional circumstances and a gross error, not merely a sentence that the appellate court would have increased. A victim's age, including age 14, does not automatically establish particular vulnerability under the sentencing guideline. The individual facts must be assessed. A judge may balance the seriousness of sexual offending against a young adult offender's age, maturity, mitigation and prospects of rehabilitation. A merciful sentence may be suspended, with punitive requirements, while remaining within the permissible range.

The respondent, aged 18 when he assaulted a 14-year-old girl, pleaded guilty at the Crown Court at Nottingham to assault by penetration contrary to section 2(1) of the Sexual Offences Act 2003. He received a two-year custodial sentence, reduced for his guilty plea and suspended for two years, with rehabilitation activity and unpaid work requirements.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988, arguing that the offence should have been placed in harm category 2 rather than category 3, or that a longer or immediate custodial sentence was required. The central issues were the significance of the victim's age, the balance of aggravating and mitigating features, and whether suspension made the sentence unduly lenient.

Disposition. The application for leave to refer the sentence under section 36 of the Criminal Justice Act 1988 was refused.

1. Reference threshold. The principles summarised in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751 and Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R 366 apply. The first-instance judge is well placed to weigh competing sentencing factors. A sentence is unduly lenient only if it falls outside the range that the judge could reasonably consider appropriate. Leave is granted only in exceptional circumstances, not borderline cases, and the jurisdiction addresses gross error. Even where undue leniency is established, the Court retains a discretion whether to increase the sentence.
2. Harm category. The judge was entitled to place the offence in category 3 harm. The decision in R v M [2025] EWCA Crim 872, concerning a 13-year-old victim, did not establish a rigid rule that age alone makes a victim particularly vulnerable due to personal circumstances. The guideline requires the specific facts of the individual case to be considered. The victim's age was not ignored; it was taken into account as an aggravating factor and in assessing seriousness.
3. Sentence and suspension. The judge balanced the aggravating and mitigating features, increased the two-year starting point to a notional two years and eight months, allowed the undisputed 25 per cent guilty-plea reduction, and considered the Imposition Guideline. Consistently with R v Clarke [2018] EWCA Crim 185, the respondent's age and developing maturity remained relevant despite his being over 18. The judge was entitled to conclude that immediate custody was not unavoidable, that rehabilitation in the community was realistic, and that the suspended sentence requirements provided an element of punishment. The resulting sentence was merciful but not unduly lenient.
4. Record corrections. The Crown Court record was directed to be corrected to show that no surcharge had been imposed and that the sentence was detention in a young offender institution, rather than imprisonment, as required by the Sentencing Act 2020.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, leave to refer the sentence was refused: [2026] EWCA Crim 158.
• Crown Court at Nottingham: The respondent was sentenced to two years' custody, suspended for two years, with rehabilitation activity and unpaid work requirements.