R v George Garner

On a reference under section 36 of the Criminal Justice Act 1988, intervention is justified only where the sentence falls outside the range reasonably open to the sentencing judge and the case involves exceptional circumstances or gross error. The Court must not simply resentence the offender. A sentencing judge may place aggravated burglary in category 1B where that assessment is reasonably open, but the lead sentence must reflect the overall gravity of all offences. Serious weapon-possession offences require separate sentences, even where those sentences run concurrently. The reference was allowed because the lead sentence was too low and no separate penalties had been imposed for the weapon offences.

The respondent, aged 74, pleaded guilty at the Crown Court at Lincoln to aggravated burglary, possessing an imitation firearm with intent to cause fear of violence, wounding with intent and possessing a bladed article. The Crown Court imposed a total sentence of four years’ imprisonment, with no separate penalties for the imitation firearm and bladed-article offences.

The Attorney General referred the sentences under section 36 of the Criminal Justice Act 1988, alleging undue leniency. The issues included the appropriate culpability category for the aggravated burglary, the effect of mitigation and totality, and whether separate sentences should have been imposed for the weapon offences.

The Court granted leave to refer the sentences and allowed the reference.

1. Applicable approach. The principles governing a section 36 reference, summarised in Attorney-General’s Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16, required respect for the sentencing judge’s assessment of competing factors. A sentence is unduly lenient only if it falls outside the range reasonably open to that judge. The jurisdiction is exceptional and is not a means of simply sentencing the offender again.
2. Aggravated burglary. The sentencing judge was entitled to place the offence in category 1B rather than category 1A. However, the bottom of the category 1B range, six years after trial, was too low. The lead sentence had to reflect not only the aggravated burglary but also the serious concurrent offences and the overall gravity of the offending, which involved violence in the victim’s home, an axe, an imitation firearm and an element of vigilantism.
3. Weapon offences. It was wrong in principle to impose no separate penalty for the imitation-firearm and bladed-article offences. They were serious examples of their respective offences. Separate custodial sentences were required, although they had to run concurrently with the sentence for aggravated burglary.
4. Substituted sentences. The appropriate sentence for aggravated burglary was nine years after trial, reduced to six years for the guilty plea. The Court imposed two years for the imitation-firearm offence, 18 months for the bladed-article offence, and left the three-year sentence for wounding with intent unchanged. All sentences were concurrent, producing a total sentence of six years’ imprisonment.

• Crown Court at Lincoln: On 31 October 2025, HHJ Peter Kelson KC sentenced the respondent to a total of four years’ imprisonment following guilty pleas. No separate penalties were imposed for the imitation-firearm and bladed-article offences.
• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the Court granted leave, allowed the reference and substituted concurrent sentences totalling six years: [2026] EWCA Crim 176.