R v David Thomas Brown & Anor

Under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only if it falls outside the range a sentencing judge could reasonably consider appropriate. The Court of Appeal does not intervene merely because it would have imposed a higher sentence. Sentencing remarks may be brief, but they must explain the starting point and material reductions. Unexplained reductions for delay, mitigation or a guilty plea can justify intervention. Delay is assessed by reference to the offender’s contribution, plea timing, detrimental effect, rehabilitation and further offending. A late plea, a contested basis requiring a Newton hearing and further offending may leave no basis for a delay reduction. The court may substitute a sentence while leaving an unchallenged sentence untouched.

Brown and Moss were sentenced at the Crown Court at Kingston upon Hull for serious Class A drug offending. Brown had pleaded guilty before trial and received 46 months’ imprisonment. Moss pleaded guilty on the first day of trial and received a total of 73 months, including a consecutive sentence for a separate committal offence.

The Solicitor General made conjoined applications under section 36 of the Criminal Justice Act 1988, arguing that the sentences failed to reflect the category of harm, the offenders’ roles, the limited credit for pleas, and the absence of justification for reductions based on delay. The central issues were whether the sentences were unduly lenient and what substitute sentences should be imposed.

1. Threshold for intervention. The court granted leave under section 36 of the Criminal Justice Act 1988. A sentence is unduly lenient only where it falls outside the range reasonably open to the sentencing judge. The court will not intervene merely because it would have imposed a higher sentence, and retains a discretion not to review even an unduly lenient sentence. This approach was supported by Attorney General's Reference (No 132 of 2001) (R v Johnson) [2003] 1 Cr App R(S) 41.
2. Sentencing explanation and Brown. Brevity in sentencing remarks is encouraged, but the remarks must make clear how the final sentence was reached. Here, the judge had not identified the notional sentence after trial or explained the reductions. The court inferred a ten-year guideline starting point for a significant-role, category 1 offence. For Brown, a 12-month reduction for delay and six months for personal mitigation were justified, but the further unexplained reduction was excessive. The one-third guilty plea discount was accepted because Brown had indicated a guilty plea on the Better Case Management Form.
3. Delay and Moss. The court applied the guidance in R v Sked and Others [2025] EWCA Crim 351. Relevant matters include the offender’s contribution to delay, the timing of the plea, any detrimental effect, rehabilitation and further offending. Moss did not plead guilty at the first opportunity, committed a further significant drug offence during the period, and required a Newton hearing because of the basis of plea advanced. There was therefore no justification for a reduction for delay. His good character justified some mitigation, but the remaining unexplained reductions were far too great.
4. Unchallenged committal sentence. The court was concerned that the 12-month sentence for Moss’s separate committal offence was unexplained and substantially below the applicable guideline starting point. Nevertheless, the Solicitor General had not sought review of that sentence, so the court left it undisturbed.
5. Substitute sentences. Brown’s sentence on Count 1 was quashed and replaced by five years and eight months’ imprisonment; the concurrent sentence on Count 4 remained unchanged. Moss’s sentence on Count 1 was quashed and replaced by eight years and one month’s imprisonment. The concurrent sentence on Count 7 and the consecutive 12-month committal sentence remained unchanged, producing a total sentence of nine years and one month.

1. Court of Appeal (Criminal Division): In [2026] EWCA Crim 941 , the court granted leave under section 36 of the Criminal Justice Act 1988, quashed the sentences on the principal counts and substituted higher sentences.
2. Crown Court at Kingston upon Hull: On 27 January 2026, Brown was sentenced to 46 months’ imprisonment and Moss to a total of 73 months’ imprisonment.