R v CHA

On a reference under section 36 of the Criminal Justice Act 1988, a sentence may be increased only if it is unduly lenient: it must fall outside the range that a judge, applying all relevant factors, could reasonably consider appropriate. Under Schedule 21 to the Sentencing Act 2020, starting points provide a broad framework and must be applied to the particular facts without double counting. A further uplift is permissible where material aggravating features were not sufficiently reflected. Exploiting children to facilitate murder, injure one child and sustain a false account justified an uplift for breach of trust and lasting harm. The minimum term was increased from 27 years and 321 days to 31 years and 321 days.

Following a retrial, the offender was convicted at the Crown Court at Inner London of murder, child cruelty, perverting the course of justice and two offences of perjury. The judge imposed a life sentence with a minimum term of 27 years and 321 days, having selected a 30-year starting point under Schedule 21 to the Sentencing Act 2020 and then deducted time spent on remand.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988, arguing that the minimum term was unduly lenient and that the murder and associated offending warranted a further uplift. The offender submitted that this would double count matters already reflected in the starting point. The central issue was whether the sentence fell outside the permissible range and whether the exploitation and harm inflicted on the children required further aggravation.

The court gave leave and allowed the reference. It quashed the minimum term of 27 years and 321 days and substituted a minimum term of 31 years and 321 days.

1. Section 36 threshold. Following Attorney General's Reference (No 4 of 1989) [1990] 1 WLR 41, the court held that it could increase the sentence only if it was unduly lenient. That means falling outside the range of sentences which a judge, applying all relevant factors, could reasonably consider appropriate. The court retained a discretion whether to intervene even after finding undue leniency. It also noted the purposes of section 36 identified in Attorney General's Reference (No 132 of 2001) (R v Johnson) [2003] 1 Cr App R(S) 41, including correcting gross error and maintaining public confidence.
2. Appellate restraint. The court applied the approach in R v Peters and others [2005] EWCA Crim 605; [2005] 2 Cr App R(S) 101. It should be slow to interfere with a trial judge's assessment of a murder minimum term and should assess the overall result rather than revisit individual mathematical choices. In a section 36 reference, intervention is justified where the term is outside the appropriate range or wrong in principle.
3. Schedule 21 framework. The starting points in Schedule 21 to the Sentencing Act 2020 provide a broad framework rather than rigid categories. The court must consider the particular facts and salient features of the case, avoid mechanistic use of the starting points and prevent double counting. This guidance was drawn from R v Jones and others [2005] EWCA Crim 3115; [2006] 2 Cr App R (S) 19.
4. Application. The 30-year starting point did not sufficiently reflect the full extent of the offender's exploitation of C1, the injury inflicted on C1, the manipulation of both children and the continuing pressure placed on C1 through subsequent criminal and family proceedings. These matters involved a profound breach of parental trust and lasting harm. They formed part of the same plan to kill and evade detection, but the further uplift addressed harm not sufficiently reflected in the starting point and did not impermissibly double count. The existing term was therefore unduly lenient.

1. Court of Appeal (Criminal Division) — On the Attorney General's reference under section 36 of the Criminal Justice Act 1988, leave was given. The minimum term was quashed and replaced with one of 31 years and 321 days.
2. Crown Court at Inner London — Following retrial convictions for murder and associated offences, the offender received a life sentence with a minimum term of 27 years and 321 days. The sentence was referred as unduly lenient.