R v GBE: Clarifying the Limits of Delay-Based Sentence Reductions and the Court’s Discretion on Unduly Lenient References

1. Introduction

Case: GBE, R. v ([2025] EWCA Crim 1064)
Court: Court of Appeal (Criminal Division) – England & Wales
Date of Judgment: 8 July 2025
Proceedings: Reference by HM Solicitor-General under the Unduly Lenient Sentence (ULS) scheme.

The Court of Appeal was asked to determine whether a two-year sentence, imposed and suspended for offences of assault occasioning actual bodily harm (ABH) and controlling or coercive behaviour, was “unduly lenient”. The original trial judge had notionally assessed the total sentence at three years four months but discounted it to two years (and then suspended it) because almost five years had elapsed between the offending and sentence, during which the respondent had built a stable new life.

The Solicitor-General challenged two aspects of the sentence:

1. Whether the judge’s starting point of 3 years 4 months was itself too low.
2. Whether the 40 % reduction for delay and post-offence mitigation was excessive, rendering a custodial term of two years (and its suspension) manifestly inadequate.

Although the Court of Appeal accepted the first limb (starting point) was open to the judge, it concluded that the scale of the discount was impermissible and therefore unduly lenient. Nevertheless, exercising its residual discretion, the Court declined to increase the sentence because of powerful post-sentence developments – most notably the respondent’s high engagement with probation, his new parental responsibilities, and progress evidenced in a fresh probation report.

2. Summary of the Judgment

• The Court granted leave to refer under the ULS scheme.
• Ground 1 rejected: The notional sentence of 3 yrs 4 mths for the totality of offending (ABH + coercive control) was not outside a reasonable range, given the circumstances.
• Ground 2 upheld: A reduction of over 40 % purely for delay and related mitigation was “not only lenient, it was unduly lenient”.
• Result: Reference allowed (sentence declared unduly lenient), but the Court exercised its discretion not to substitute a harsher sentence, leaving the suspended order undisturbed.

3. Analysis

3.1 Precedents Cited and Their Influence

The Court relied chiefly on its own earlier authority in R v Timpson [2023] EWCA Crim 453, which gave guidance on the proper extent of sentence reduction for delay. In Timpson a 40 % discount for a 2 year 10 month delay was found excessive. The present Court used that case by analogy:

• Timpson principle: Delay can justify some discount, but ordinarily not of a scale that collapses a custodial sentence into a suspended one unless truly exceptional features exist.
• Application: Although five years had elapsed since GBE’s offending, the Court found no extraordinary institutional failing (e.g. lost evidence, prosecution inaction). Much of the delay stemmed from the ordinary course of investigation, pre-recorded cross-examination, and the trial itself.

The Court also invoked general propositions from:
– Attorney-General’s References (various) on the test for undue leniency; and
– The “Seven Principles” for suspended sentences distilled in R v Manning [2020] EWCA Crim 592 (COVID-19 context) and succeeding cases.

3.2 The Court’s Legal Reasoning

1. Stage One – Was the sentence unduly lenient?
   Undue leniency is established when the sentence falls outside the range which a judge, applying his mind to all relevant factors, could reasonably consider appropriate. Here, the Court held:
   • A starting point of 3y4m was permissible (category 1 harm, category A culpability for both counts): offender strangled the victim to unconsciousness, inflicted psychological trauma, and engaged in sustained coercive conduct.
   • However, reduction to two years (and suspension) ignored the guidance that large discounts for delay should be “rare and carefully justified”. The 40 % deduction was plainly excessive.
2. Stage Two – Should the Court increase the sentence?
   Even after finding undue leniency, the Court retains a discretion not to interfere. Key considerations:
   • Post-sentence progress: The respondent had already served part of the punitive elements (unpaid work, rehabilitation days) and was demonstrating genuine engagement.
   • Collateral consequences: Imprisonment would derail Family Court contact arrangements, threaten a new mortgage, and aggravate his mother’s serious illness.
   • Public protection: Probation assessed risk as medium, and structured supervision was ongoing.
   • Fresh evidence: An updated probation report and maternal letter were persuasive, but were unavailable to the sentencing judge.
   Balancing these factors, the Court considered it would be “wrong in principle” to substitute an immediate custodial sentence after a seven-month period of successful compliance.

3.3 Potential Impact on Future Cases

The decision crystallises two complementary propositions:

1. Upper Limit on Delay Discounts: Even prolonged delay (here, ~5 yrs) will seldom justify cutting more than one-third from an otherwise appropriate term. Judges must “carefully calibrate” deductions and provide clear reasoning, especially before converting custody into suspension.
2. Scope of Appellate Discretion: When the ULS court finds a sentence unduly lenient, it may still decline to interfere where the offender has demonstrably used the suspended period to rehabilitate, and where immediate custody would be counter-productive. The ruling therefore encourages:
   • Probation to file detailed, up-to-date reports for ULS hearings;
   • Offenders to engage meaningfully with rehabilitation, knowing that post-sentence progress may carry significant weight on appeal.

4. Complex Concepts Simplified

• Unduly Lenient Sentence (ULS) Scheme: Allows the Attorney or Solicitor-General to refer a Crown Court sentence to the Court of Appeal if it may be “unduly lenient”. The Court may increase the sentence, leave it unchanged, or (rare) reduce it if excessive.
• Notional Sentence: The sentence the trial judge identifies as appropriate before applying factors such as plea discount, totality, delay, or suspension.
• Delay Discount: A reduction to recognise anxiety suffered during the wait, changes in personal circumstances, or institutional responsibility. Unlike guilty-plea discounts, there is no fixed percentage; discretion must be “modelled by principle”.
• Suspended Sentence Order (SSO): Custodial term of up to two years that is “hung over” the offender’s head for a set period (here, two years) with requirements such as unpaid work. If the offender breaches, the custodial term can be activated.
• Coercive or Controlling Behaviour (Serious Crime Act 2015 s.76): A pattern of acts or omissions which causes a partner or ex-partner to fear violence or suffer serious alarm/distress. Maximum sentence: five years.

5. Conclusion

R v GBE ([2025] EWCA Crim 1064) serves as a pivotal authority on two fronts. First, it reinforces that extensive deductions for pre-sentence delay must be tightly controlled, even where an offender has built a new life. Second, it affirms the appellate court’s latitude to leave an unduly lenient sentence intact when meaningful rehabilitation is demonstrably under way. Practitioners should treat the case as a caution against blanket “delay discounts” and as a reminder that post-sentence conduct can decisively influence the Court’s remedial discretion under the ULS scheme.