Drew, R. v

Factual and Procedural Background

This opinion concerns an application by His Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 to refer sentences to the Court on the ground that they were unduly lenient.

On 7 August 2024, in the Crown Court at Plymouth, the Respondent pleaded guilty upon re-arraignment to two offences: controlling or coercive behaviour in an intimate relationship (count 1) and intentional strangulation (count 4). On 10 September 2024, in the Crown Court at Truro, the Respondent was sentenced by HHJ Robert Linford to 2 years' imprisonment suspended for 2 years on count 1, and a concurrent sentence of 18 months' imprisonment suspended for 2 years on count 4. The sentences included requirements such as a 30-day programme and up to 10 days of rehabilitation activity. The court clarified that the sentence was a suspended sentence order, not a community order.

The facts, agreed in the Final Reference, reveal that the Respondent was in a relationship with the victim for approximately six years, with two young children. Throughout the relationship, the Respondent subjected the victim to prolonged coercive and controlling behaviour, including physical assaults, isolation, financial control, and restricting access to medical care. The Respondent strangled and bit the victim multiple times, causing injuries documented by photographs. On 24 March 2024, the Respondent strangled the victim twice during an altercation, threatened her with violence including threats to burn down her house, and sent threatening messages after leaving.

The Respondent handed himself in to police three days later, denying the allegations and claiming self-defence or attributing injuries to other causes. The Respondent has a history of 12 previous convictions, including violent offences and breaches of restraining orders.

Procedurally, the Respondent initially pleaded not guilty to all counts at a plea and trial preparation hearing on 26 July 2024 but changed his plea to guilty on counts 1 and 4 on 7 August 2024. The sentencing hearing took place on 10 September 2024. The judge indicated that the sentence would be suspended and took into account pre-sentence reports and sentencing guidelines.

Legal Issues Presented

1. Whether the sentences imposed on counts 1 and 4 were unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
2. Whether the sentencing judge correctly applied the relevant Definitive Guidelines and case law, including the appropriate starting points and aggravating factors for the offences.
3. Whether the sentencing judge properly applied credit for guilty pleas and followed the procedural requirements for sentence indications as set out in R v Goodyear.
4. Whether the sentences should have been immediate custodial sentences rather than suspended sentences.

Arguments of the Parties

Solicitor General's Arguments

• The sentence for count 1 was insufficiently aggravated given multiple high culpability and aggravating factors; a sentence near the top of the 1A category range (around 4 years) was appropriate.
• The sentence for count 4 failed to reflect the guidance in R v Cook, which recommends an 18-month custodial sentence ordinarily immediate.
• The judge did not sufficiently increase the lead offence sentence to reflect the totality of offending given the additional offence.
• The judge gave excessive credit for guilty pleas, wrongly applying a full one-third discount despite the late timing of the pleas.
• Had the sentence been properly aggravated and credit properly applied, the sentence would have exceeded two years, making suspension unavailable.
• Even if a two-year sentence was appropriate, the seriousness of the offences required immediate custody.
• The judge failed to follow the procedural requirements for sentence indications under R v Goodyear, undermining the process.
• No mitigating features existed other than the guilty pleas.

Respondent's Arguments

• The judge gave the Respondent a genuine belief that he would not be imprisoned, constituting an appropriate case management approach.
• The judge correctly aggravated the controlling and coercive behaviour offence and imposed an appropriate 18-month sentence for strangulation, making the former the lead offence.
• The judge was correct to suspend the sentences.
• The one-third discount for guilty pleas was appropriate given the procedural history and the timing of the pleas.
• The judge's indication, though not strictly compliant with Goodyear, was a form of "aggressive case management" mindful of prison capacity and court backlog.
• There was strong personal mitigation relating to the impact on the Respondent’s two young children if immediate custody were imposed.
• The overlap in offending periods justified avoiding double counting when sentencing for count 4.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Cook [2023] EWCA Crim 452; [2023] 4 WLR 71	Guidance on sentencing for intentional strangulation, recommending an 18-month custody starting point ordinarily immediate.	The Court acknowledged the guidance and found the sentencing judge’s starting point for count 4 appropriate but disagreed with suspension of that sentence.
R v Goodyear [2005] EWCA Crim 888; [2005] 2 Cr App R 20	Procedural requirements for giving sentence indications, including that indications should only be given if requested and with proper warnings regarding guilty pleas and possible referral by Law Officers.	The Court found the sentencing judge erred by giving an unsolicited indication inconsistent with Goodyear procedure, undermining the fairness of the process.
Attorney-General's Reference (R v Azad) [2021] EWCA Crim 1846; [2022] 2 Cr App R(S) 10	Principles governing applications for leave to refer sentences as unduly lenient, emphasizing the high threshold of gross error and the deference to first instance judges.	The Court applied these principles to determine that the sentence was unduly lenient due to errors in procedure and sentencing approach.
Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R(S) 366	The Court’s role is not to re-sentence but to identify gross error; mercy does not preclude a sentence being unduly lenient.	The Court reiterated this principle in assessing whether the sentence fell outside the appropriate range.
Attorney-General's Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41	Distinguishes between leniency and unduly lenient sentences; emphasizes the importance of public confidence and avoiding gross error.	The Court relied on this to support the conclusion that the sentence was unduly lenient.

Court's Reasoning and Analysis

The Court began by reaffirming established principles under section 36 of the 1988 Act, emphasizing the high threshold for finding a sentence unduly lenient and the deference owed to sentencing judges. It noted that the sentencing judge was well placed to weigh competing factors.

However, the Court identified three key errors. First, the sentencing judge failed to comply with the procedural requirements for sentence indications as laid down in R v Goodyear and subsequent Criminal Procedure Rules and Practice Directions. The judge gave an unsolicited indication that a plea would result in a suspended sentence without the necessary warnings or a proper basis of plea, thereby undermining procedural fairness.

Second, the judge erred in granting full one-third credit for guilty pleas that were not entered at the earliest opportunity. The chronology showed initial not guilty pleas and no agreed basis of plea at the time of the plea change, making the full discount inappropriate.

Third, the Court found that the sentencing judge inadequately increased the sentence to reflect the totality of the offending. Although the judge started at 2½ years for count 1 and increased to 3 years to account for aggravating features and the additional offence, the Court held this was insufficient. The Court assessed that an appropriate post-trial sentence would have been at least 40 months (3 years and 4 months). After allowing a 25% discount for guilty pleas, the appropriate sentence was 30 months (2½ years) for count 1.

The Court agreed with the starting point for count 4 at 18 months but held that this sentence should be immediate rather than suspended. Concurrent sentences were appropriate, but the total sentence must reflect the overall gravity of the offending without double counting.

Holding and Implications

The Court granted the Solicitor General's application for leave to refer the sentences under section 36 of the 1988 Act and QUASHED the original suspended sentences imposed by the Crown Court.

The Court substituted the following sentences:

• Count 1: 2½ years' imprisonment (immediate custodial sentence).
• Count 4: Concurrent sentence of 18 months' imprisonment (immediate custodial sentence).

The starting date for these sentences will be the date on which the Respondent surrenders to custody. The Court ordered the Respondent to surrender to the Newquay Custody Suite by 10:00 am on Wednesday 20 November 2024, with consideration for the Respondent’s means of travel and local conditions.

No broader legal precedent was established beyond the application of existing principles. The decision directly affects the Respondent by imposing immediate custodial sentences and clarifies procedural requirements for sentence indications and the application of guilty plea discounts in similar cases.