R v Lee Jennings

In an Attorney General’s reference under Criminal Justice Act 1988, a sentence for multiple offences must be tested against the totality requirement. It must be just and proportionate to the offending as a whole. Concurrent sentences may require an upward adjustment to the lead offence where other offences add serious criminality. A sentence is unduly lenient under section 36 only if it falls outside the range that a judge, applying all relevant factors, could reasonably consider appropriate. Even when that threshold is met, the appellate court retains discretion whether to interfere. The reference succeeded, and immediate concurrent sentences totalling three years and four months were substituted.

After pleading guilty to two assaults by beating, intentional strangulation and controlling or coercive behaviour, the offender was sentenced by the Crown Court at Leeds to concurrent terms, suspended for two years, together with supervision requirements and restraining orders. The Solicitor General obtained leave to refer the sentence under section 36 of the Criminal Justice Act 1988.

The challenge did not concern the guideline categorisation, starting points or guilty plea reductions. It concerned the absence of an upward adjustment under the totality principle to reflect the additional criminality, particularly the offences against the offender’s children. The central issues were whether the sentence was unduly lenient and, if so, whether the court should replace it with immediate imprisonment.

The reference succeeded. The court quashed the sentences imposed by the Crown Court and substituted concurrent terms of immediate imprisonment.

1. The Recorder had correctly adopted the agreed guideline categorisation: category A1 for controlling or coercive behaviour and category B1 for intentional strangulation. The resulting notional terms fairly reflected the aggravating and mitigating factors. The guilty plea reductions, although generous, did not by themselves make the sentence unduly lenient.
2. The Recorder erred in applying the totality principle. Where there are multiple offences, the court must stand back and test the overall sentence against the requirement that it is just and proportionate to the offending as a whole. This may require consecutive sentences or an upward adjustment to the sentence for the lead offence. Here, the sentence for controlling or coercive behaviour did not reflect the offender’s overall criminality, particularly the distinct and serious offending against two children.
3. Under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient if it falls outside the range of sentences that a judge, applying all relevant factors, could reasonably consider appropriate. The court applied that test, following the formulation in Attorney General’s Reference (No 4 of 1989) [1989] 11 Cr App R (S) 521, and concluded that the sentence crossed the threshold.
4. Even after finding undue leniency, the court retained discretion whether to interfere. It considered the offender’s mitigation, rehabilitation, later material and compliance with the electronically monitored curfew. The seriousness of the offending required immediate imprisonment, but four months’ curfew compliance justified a reduction of two months from the otherwise appropriate term.
5. The concurrent sentences were therefore fixed at five months for count 1, four months for count 2, 21 months for count 3 and three years and four months for count 4. The total sentence was three years and four months’ immediate imprisonment. The restraining orders remained in force until further order.

• Court of Appeal (Criminal Division) — Leave was granted for the reference under section 36 of the Criminal Justice Act 1988. The reference succeeded, and the suspended sentence was quashed and replaced with concurrent terms of immediate imprisonment.
• Crown Court at Leeds — Following guilty pleas, the offender received concurrent terms of imprisonment suspended for two years, with additional requirements and restraining orders.