McCann, R. v

Factual and Procedural Background

This opinion concerns an application by His Majesty's Solicitor General for leave to refer a sentence to the Court under section 36 of the Criminal Justice Act 1988 on the basis that it was unduly lenient. The respondent offender, aged 19 at the time of the offences, pleaded guilty in the Crown Court at Maidstone to two offences committed on 23 May 2021 involving assaults on two victims at a railway station platform. The offender and his brother repeatedly punched and kicked the victims, resulting in serious injuries including two jaw fractures requiring surgery to one victim and actual bodily harm to the other.

The offender was sentenced on 22 January 2025 by a Crown Court judge to a suspended sentence order of two years' imprisonment suspended for two years for the offence of causing grievous bodily harm with intent, and a concurrent suspended sentence of four months for assault occasioning actual bodily harm. Additional requirements included unpaid work and rehabilitation activity, a statutory surcharge, and compensation to one victim. A charge of unlawful wounding was not proceeded with.

The procedural history includes the offender's initial guilty plea in April 2022, multiple adjournments, and a significant unexplained delay of approximately 14 months before sentencing was concluded in January 2025. The offender had no previous convictions at the time of the offences but had subsequently pleaded guilty to other offences while awaiting sentence in this case.

Legal Issues Presented

1. Whether the sentence imposed for the offence of causing grievous bodily harm with intent was unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
2. Whether the sentencing judge erred in the assessment of aggravating and mitigating factors, including the appropriateness of the suspension of the sentence.
3. Whether the technical defect in the form of the sentence—imprisonment rather than detention in a young offender institution—required interference with the sentence.

Arguments of the Parties

Solicitor General's Arguments

• The overall sentence was unduly lenient, particularly the sentence for the principal offence under section 18 of the Offences Against the Person Act 1861.
• The judge failed to sufficiently increase the sentence to reflect aggravating factors such as intoxication, the location and timing of the offence on a railway platform, and the need to reflect the concurrent offence.
• The judge excessively reduced the sentence for mitigating factors, lowering the notional sentence after trial to as low as three years, which was too great a reduction.
• The suspension of the sentence was inappropriate; the sentence should have exceeded two years, the maximum length capable of suspension, and the seriousness of the offending outweighed factors favouring suspension.

Respondent's Arguments

• The sentence, while lenient, was not unduly so and fell within the reasonable range of sentencing discretion.
• The judge made an adequate upward adjustment for aggravating factors and a proper downward adjustment for mitigating factors including youth, immaturity, remorse, ADHD, and delay.
• The decision to suspend the sentence was a proper exercise of discretion, taking into account the respondent's personal circumstances, the long delay, and absence of further serious offending.
• The judge was best placed to determine the sentence after observing the respondent over two hearings and considering all relevant factors.
• Factors supporting mitigation included genuine remorse, positive character, emotional maturity less than chronological age, responsibility for a young child, employment, and the impact of unjustifiable delay.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reaffirming the well-established principles governing applications under section 36 of the Criminal Justice Act 1988, emphasizing the deference owed to sentencing judges who are best placed to weigh competing factors. The Court noted that an unduly lenient sentence is one that falls outside the reasonable range of sentencing options and that intervention should be reserved for exceptional cases involving gross error.

While the Court acknowledged that the sentencing judge's reduction of the notional sentence after trial to as low as three years was arguably too low and that the sentence capable of suspension was at the maximum permitted length, it exercised its discretion not to increase the sentence. This decision was influenced by the exceptional combination of mitigating circumstances, including the offender's youth and immaturity at the time of the offences, the lengthy and unjustified delay in sentencing, and the offender's good conduct since the offences.

The Court also took into account the impact that an immediate custodial sentence would have on the offender's family life, employment, and accommodation, noting that the offender had a young child and was engaged in part-time work. The Court recognized the serious impact on victims but concluded that the public interest would not be served by imposing immediate custody at this stage.

Regarding the technical defect in sentencing (imposing imprisonment rather than detention in a young offender institution), the Court held that this did not justify interference with the sentence, applying established precedent.

Holding and Implications

The Court granted the Solicitor General leave to refer the sentence under section 36 of the Criminal Justice Act 1988 but did not interfere with the sentence imposed by the Crown Court.

The direct effect of this decision is that the suspended sentence order remains in place. No new precedent was established, and the Court exercised its discretion to uphold the sentence despite recognizing certain imperfections in the sentencing process and the sentence length. The decision underscores the high threshold for intervention in unduly lenient sentence referrals and the importance of considering the offender's circumstances and the broader public interest.