Appellate Restraint on Unduly Lenient Sentence References Where the Judge Remains Within the Guideline Range (Category 2B Sexual Assault)

1. Introduction

R v Hadsh concerned an application by His Majesty’s Solicitor General under section 36 of the Criminal Justice Act 1988 to refer a sentence as unduly lenient. The offender, Aron Hadsh, had been convicted in the Crown Court at Isleworth of sexual assault contrary to section 3 of the Sexual Offences Act 2003 (and acquitted of kidnap).

The complainant was a young adult with significant learning difficulties and low IQ. The assault involved unwanted kissing and sexual touching (including under clothing), in circumstances the sentencing judge treated as serious and involving a vulnerable victim.

The principal appellate issue was not whether the offence was serious, but whether the Crown Court’s 14-month custodial sentence was so low as to be “unduly” lenient, warranting intervention under the high threshold applicable to section 36 references.

The judgment also reiterated that the Sexual Offences (Amendment) Act 1992 anonymity regime applied, prohibiting publication of material likely to identify the complainant during her lifetime unless lawfully waived or lifted.

2. Summary of the Judgment

  • The Court of Appeal (Criminal Division) granted leave to proceed with the reference.
  • However, it dismissed the Solicitor General’s reference and upheld the 14-month sentence.
  • The Court accepted the sentencing judge’s categorisation of the offence as category 2B under the Sentencing Council Sexual Offences guideline.
  • It held that, although the sentence could be described as lenient, it was not “unduly” lenient given the overall approach, the need to avoid double counting, and the limited aggravating features beyond those already reflected in the guideline assessment.

3. Analysis

3.1 Precedents Cited

Attorney General’s Reference No 132 of 2001 (R v Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41

The Court relied on this authority for the purpose and constitutional function of the unduly lenient sentence jurisdiction: to avoid “gross error”, address public concern, and preserve confidence where a sentence departs substantially from sentencing norms. Importantly, the reference to Johnson framed section 36 as an exceptional corrective mechanism, not an invitation for routine resentencing.

In Hadsh, this principle anchored the Court’s restraint: even if a higher sentence could have been justified, intervention required the much higher finding that the sentence fell outside the range that a judge could reasonably impose.

R v Mohammed Arfan [2022] EWCA Crim 1416

The Court cited Mohammed Arfan for the proposition that sentencing is an art, not a science, and that leniency is not itself a vice. This reinforced the appellate stance that section 36 is engaged only when a sentence is unduly lenient, not merely capable of being criticised as low.

Applying that approach, the Court accepted that 14 months might sit towards the low end of what some judges might impose in such facts, yet still remain within permissible judgment—thereby failing to cross the “unduly lenient” threshold.

3.2 Legal Reasoning

The Court’s reasoning proceeded in three main steps:

  1. High threshold reaffirmed: Section 36 requires more than disagreement; it requires a sentence outside the bounds of reasonable sentencing practice. The Court explicitly reminded itself that “the hurdle is a high one.”
  2. No error of principle identified: The Solicitor General did not challenge the judge’s guideline category assessment (2B) nor the identification of harm, aggravating, and mitigating factors. The Court found the sentencing remarks “careful and well structured.”
  3. Guideline mechanics and “double counting”: The Court accepted that multiple harm factors can justify moving up within the guideline range and, in a case of particular gravity, may justify an upward adjustment beyond the starting point. But it rejected the argument that this case required going beyond the category range, emphasising that much of what made the case serious (notably vulnerability) had already been used to drive the sentence up within the category and could not be relied on again as a separate aggravating uplift.

The Court also considered “targeting” but treated it cautiously, noting uncertainty as to whether it was distinct from (or merely intertwined with) the complainant’s vulnerability and alcohol-related context. This careful approach limited the basis for any further uplift beyond what the judge had already done.

A notable feature is the Court’s explicit recognition that a higher sentence (it gave an illustrative calculation) could be regarded as “lenient”, yet still not “unduly” so. That articulation underscores the difference between (a) a sentence an appellate court might have imposed itself and (b) a sentence so wrong that section 36 requires correction.

3.3 Impact

The decision’s practical significance lies less in any new doctrinal test and more in its emphatic, fact-sensitive guidance on when the Court will (and will not) intervene on an unduly lenient sentence reference:

  • Staying within the guideline range is a strong indicator of safety on section 36 review, especially where the judge has correctly identified harm/culpability features and applied mitigation rationally.
  • Multiple harm factors can justify moving to the top of the range, but do not automatically compel going beyond it.
  • Double counting remains a central restraint in sexual offences sentencing: vulnerability or other harm features should not inflate the sentence twice under different labels.
  • The judgment implicitly signals that, absent clear additional aggravation (e.g., significant planning, threats, extreme violence, breach of trust beyond what is already captured), the Court may be reluctant to treat a within-range custodial term as “unduly lenient.”

4. Complex Concepts Simplified

“Unduly lenient” (section 36 Criminal Justice Act 1988)
Not simply “too low” in the eyes of an appellate court. It means the sentence is outside the range reasonably available to the sentencing judge, applying correct law and principle.
Sentencing guideline “starting point” and “range”
The starting point is the benchmark sentence for typical cases in that category. The range shows the usual permissible bracket, with movement up/down depending on aggravating and mitigating factors.
Category 2B (Sexual Offences guideline)
A guideline classification reflecting assessed levels of harm and culpability. Here, it carried a custodial starting point (12 months) and an indicated range up to two years.
Double counting
Using the same feature twice to increase sentence severity (e.g., treating vulnerability as a harm factor to move to the top of the range, and then treating it again as an aggravating factor to justify further uplift). Courts seek to avoid this to ensure proportionality and transparency.
Sexual Offences (Amendment) Act 1992 anonymity
Protects complainants in sexual cases from identification in publications during their lifetime unless anonymity is waived or lawfully lifted.
Restraining order vs Sexual Harm Prevention Order (SHPO)
A restraining order can prohibit contact/approach to protect a victim. An SHPO is a distinct protective order aimed at preventing sexual harm more broadly; it requires proper procedure and jurisdictional basis.

5. Conclusion

R v Hadsh [2026] EWCA Crim 365 reinforces the disciplined boundaries of the unduly lenient sentence jurisdiction. Even in serious sexual offending involving a vulnerable complainant, the Court will not interfere unless the sentence is not merely low but “unduly” so. The judgment highlights the protective role of sentencing guidelines, the importance of avoiding double counting, and the appellate court’s reluctance to convert section 36 into a general merits-based resentencing exercise.