“One Bite of the Cherry” – The Court of Appeal Clarifies How to Avoid Double-Counting in Step-Based Sentencing for Child-Death Offences
(Commentary on Gleason-Mitchell, R. v [2025] EWCA Crim 874)

1. Introduction

In Gleason-Mitchell the Criminal Division of the Court of Appeal was asked by the Solicitor-General, under s.36 Criminal Justice Act 1988, to declare a 10-year determinate sentence “unduly lenient”. The underlying conviction was for “causing or allowing the death of a child” contrary to s.5 Domestic Violence, Crime and Victims Act 2004 (“DVCVA 2004”). Although the trial judge found the case to be Category 1A under the definitive Sentencing Council guideline, he imposed a 14-year term at step 1, reduced to 10 years after a 28 % guilty-plea discount. The prosecution argued that the brutal, protracted suffering of the two-year-old victim demanded a higher sentence and that the judge had erroneously treated a key aggravating feature only once, thereby under-inflating the penalty.

The Court (Edis LJ, Fordham J and HHJ Katharine Moore) dismissed the reference. In doing so it articulated a new, clear principle: where a single factual circumstance (here, “prolonged suffering”) appears in both the culpability matrix at step 1 and the harm/aggravation list at step 2 of a guideline, the sentencer is entitled to give it weight once only. Provided the judge demonstrates that the factor has been taken into account somewhere, an appellate court will not interfere. This decision effectively ends the lingering debate over whether repetition at both steps is mandatory or impermissible “double-counting”.

2. Summary of the Judgment

• Leave granted but reference dismissed: The Court accepted that a different judge could have reached a higher figure, yet held that the sentence actually imposed was not “unduly lenient”.
• No error in credit for plea: A 28 % reduction—entered at the first possible arraignment despite procedural delay—was “generous but not unduly lenient”.
• Main ratio: The trial judge was entitled to fold the “prolonged suffering” circumstance into step 1 (culpability) and then omit it from step 2 (harm/aggravation). Doing so avoided double-counting and satisfied s.63 Sentencing Act 2020 as the harm was still fully acknowledged.
• Deference to trial judge: Given his unique insight from a four-day testimony and full trial management, the Court of Appeal refused to re-calibrate the balancing of aggravating and mitigating factors.

3. Analysis

3.1 Precedents and Authorities Considered

• Attorney-General’s Reference (Nos 14 & 15 of 2006) [2006] EWCA Crim 0304 – established “one bite of the cherry” principle for s.36 references: only manifestly insufficient sentences will be increased.
• R. v. Wood [2022] EWCA Crim 350 – confirmed that the definitive guideline for s.5 DVCVA offences is “normally binding”; departure requires the stringent s.59 Sentencing Act 2020 “interests of justice” test.
• Attorney-General’s Reference (No 38 of 2016) (“Myles”) – emphasised the need to avoid double-counting between step 1 and step 2.
• R. v. Petherick [2020] EWCA Crim 175 – highlighted the Court’s limited remit on “unduly lenient” references: it cannot tinker, only correct clear error.
• R. v. Daniels [2024] EWCA Crim 1180 – recent authority that “failure to isolate a harm factor at step 2 is not per se an error if the sentencing remarks show it has been weighed elsewhere.”

3.2 Legal Reasoning of the Court

1. Guideline Structure. For s.5 DVCVA offences the Sentencing Council stipulates a two-step process:
   1. Step 1 – locate starting point and range via culpability and harm categories (here Category 1A, starting point 14 yrs, range 12-18).
   2. Step 2 – fine-tune by adding or subtracting aggravating/mitigating factors.
2. Single or double valuation? “Prolonged and multiple incidents of serious cruelty” appears in the culpability table. A near-identical wording (“prolonged suffering prior to death”) re-emerges in the step 2 harm list. The Solicitor-General argued for separate valuations; the Court held that would inevitably duplicate the same factual weight. Sentencers must avoid punishing twice for one fact, per Myles.
3. Sufficiency of Recognition. The transcript made clear that the judge expressly relied on the brutality and duration of the assaults when selecting 14 years rather than dipping deeper into the 12-year range. Therefore the harm was recognised, satisfying s.63 Sentencing Act 2020.
4. Balancing of Aggravation and Mitigation.
   • Aggravation: concealment of injuries, absence of remorse, ancillary drug cruelty (Counts 5 & 7).
   • Mitigation: previous good mothering, genuine if muted grief, mental health vulnerability, “extreme passivity” and manipulation by co-accused, and clear record.
   The Court found nothing irrational in viewing these as broadly offsetting.
5. Deference. Edis LJ reiterated that the Court of Appeal is “not the primary sentencer”. A trial judge who has heard four days of live evidence is uniquely placed to assess genuine culpability. Only a sentence outside any reasonable exercise of discretion warrants intervention.

3.3 Likely Impact of the Decision

• Sentencing Practice: Judges can confidently house a cross-cutting fact either in step 1 or step 2 but should not apply it twice. Clear sign-posting in sentencing remarks is now best practice.
• Guideline Interpretation: The Court’s reasoning will probably be cited in future “double-counting” arguments across other offence-specific guidelines that share duplicate wording (e.g. manslaughter, modern slavery, fraud). Expect updated bench-books emphasising a single valuation.
• Unduly Lenient References: The bar for successful s.36 references in child-death cases remains high. The Crown must show that no reasonable sentencer could have imposed the index sentence after proper application of the guideline.
• Child-Protection Context: Although the appeal failed, the brutal facts and publicity will likely feed into multi-agency safeguarding reviews and training on parental passivity in the face of partner violence.

4. Complex Concepts Simplified

Unduly Lenient Sentence (ULS)

A sentence so low that it “falls outside the range of sentences which a judge, applying their mind to all the relevant factors, could reasonably consider appropriate” (Attorney-General’s Ref (No 4 of 1989)).

s.36 Criminal Justice Act 1988 Reference

Procedure allowing the Attorney- or Solicitor-General to ask the Court of Appeal to increase an allegedly lenient Crown Court sentence for an indictable-only or certain either-way offences.

s.5 Domestic Violence, Crime and Victims Act 2004 (“Causing or Allowing Death”)

Makes any household member who “knew or ought to have known” about significant risk of serious physical harm to a child criminally liable if the child dies. Max penalty: 14 years.

Sentencing Guideline “Steps”

Step 1: identify starting point and category range using matrices of culpability and harm.
Step 2: adjust within (or exceptionally outside) the range for aggravation or mitigation before applying reductions for plea, totality, etc.

Double-Counting

Counting the same factual element twice to inflate sentence severity—contrary to proportionality and fairness. The Court confirmed only one “bite of the cherry” is permissible.

5. Conclusion

Gleason-Mitchell provides a definitive answer to an important procedural question: when facts overlap between the step-1 culpability grid and step-2 aggravating factors, the sentencer must attribute weight once, but may choose where in the calculation to do so. So long as the judgment transparently records that the fact has been considered, appellate intervention will be rare.

Beyond the technical rule, the case underscores the Court of Appeal’s enduring reluctance to interfere with a trial judge’s balanced sentencing appraisal—especially where the judge has unique experiential knowledge of the defendant and has meticulously followed the guideline framework. For practitioners, the message is clear: arguments on “unduly lenient” references must identify true error, not mere disagreement. For judges, the decision models lucid sentencing remarks that explicitly show the journey to sentence, protecting it from later attack.