Summary of Court of Appeal Opinion (Anonymized)

Factual and Procedural Background

This is a reference under section 36 of the Criminal Justice Act 1988 (as amended) brought by the Director of Public Prosecutions ("DPP") challenging the length of a global determinate custodial sentence of seven years (split equally between custody and licence) imposed on 10 April 2025 by Judge Kerr. The DPP submitted that the sentence was unduly lenient.

The respondent was sentenced for 40 offences involving nine victims, committed over a period from 2015 to 2022. The offences included (in summary): offences concerning causing or inciting prostitution, controlling prostitution, arranging or facilitating travel with a view to exploitation (trafficking), obtaining sexual services for payment, being concerned in or offering to supply Class A drugs, intimidation, and perverting the course of justice.

The offending was investigated by the Modern Slavery and Human Trafficking Unit of the police beginning on 5 June 2020. Some victims were aged 17–19 when the offending began. The agreed background facts describe the respondent exploiting victims who used heroin, arranging meetings with clients and driving victims to appointments, and, in one instance, repeatedly driving past a victim's home and offering money to withdraw her complaint to police.

At first instance the judge identified the trafficking offences as the headline offences, set a starting point of nine years for those trafficking offences, applied 12 months' reduction for personal mitigation (age and medical conditions), then a 25% reduction for guilty pleas in relation to the trafficking offences, resulting in six years for trafficking. Lesser concurrent sentences were imposed for prostitution and drugs offences, and the charges of intimidation and perverting the course of justice were treated as consecutive to the trafficking sentence only to the extent of producing an overall effective sentence of seven years. The DPP sought leave to refer the sentence as unduly lenient.

Legal Issues Presented

1. Whether the global sentence of seven years was outside the appropriate range for offending of high culpability and high harm in respect of the trafficking headline offences and therefore unduly lenient.
2. Whether the sentence sufficiently reflected the need for deterrence for this type of offending.
3. Whether the judge adequately took into account the aggravation of the trafficking headline offences by the drug offending and the respondent's control of prostitution.

Arguments of the Parties

Prosecution's Arguments

• The DPP submitted that the offending warranted a starting point and range significantly higher than adopted by the sentencing judge; the prosecution suggested a range for the trafficking offending in the region of 12–14 years.
• The prosecution argued the drugs offending and control of prostitution materially aggravated the trafficking offending and should have been reflected in a higher headline sentence and overall sentence.
• The prosecution relied on the need for an appropriate sentence to reflect the predatory nature of the offending, the vulnerability of the victims, and deterrence.

Respondent's Arguments

• The defence had submitted that prostitution offences should be treated as the headline offences, that a significant credit for plea should apply, and that consistency with sentences imposed on others involved in similar offending was important (citing other defendants who received sentences of five years, six years, two years and a two-year probation order).
• The defence raised personal mitigation based on the respondent's age and medical issues, which the judge accepted to a limited extent (a 12-month reduction).
• On appeal before this court, defence counsel asked the court to decline to exercise its discretion to increase the sentence, noting the respondent's imminent release date and that he faced further sentencing in another jurisdiction; the defence argued this should limit any uplift.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Case A [2023] NICA 2	Explains the nature and limits of a section 36 reference: prosecution does not have a general right of appeal; increase only where sentence is unduly lenient or there is manifest error; leave granted in exceptional circumstances.	The court relied on Case A to restate the test for references and the limited ambit of the DPP's power to refer sentences as unduly lenient.
R v Case B [2022] NICA 69	Guidance on applying the principle of totality when sentencing multiple offences and multiple victims.	The court cited Case B as prior guidance on sentencing multiple offences and applied the same general approach when assessing whether the sentencing judge had properly applied totality.
R v Case C [2024] NICA 19	Set out a stepwise approach for multiple-offence, multiple-victim cases (identify headline offence, decide on concurrency/consecutivity, consider separate victims, totality check, apply plea reduction).	The court reiterated the approach in Case C (including five specific steps) and used that framework to assess the sentencing methodology applied by the judge in the present case.
R v Linked Cases (referred to by the sentencing judge)	Used at first instance as part of an exercise to promote consistency in sentencing between related defendants in linked proceedings.	The court noted the sentencing judge referred to these linked cases in seeking consistency, but emphasised that ranges should be cited to the trial judge where possible and that first instance judges have advantages when considering such material.

Court's Reasoning and Analysis

The court began by reiterating the limited scope of a section 36 reference: a sentence may only be increased if it is unduly lenient rather than merely less than the appeal court would have imposed, and leave to refer should be granted only in exceptional circumstances. The court emphasised that the prosecution cannot create a new case on a reference and that the appeal court should deal only with matters actually referred.

The reference before the court was presented on a discrete threefold basis (see Legal Issues Presented above). The court noted there is limited direct domestic guidance in its jurisdiction on trafficking of this character, and that England & Wales sentencing guidelines had been used as an aid before the judge at first instance.

The court explained sentencing methodology for complex, multiple-offence cases: identify a headline offence and appropriate starting range, take account of aggravating and mitigating factors to arrive at a sentence before plea reduction, and then apply reductions for pleas and any totality adjustments.

Applying that methodology, the court concluded that although the judge had identified aggravating features, he had not fully appreciated the extent to which the drugs offending and the control of prostitution aggravated the trafficking headline offences when imposing concurrent sentences. The court considered the overall offending to be of high culpability and high harm and assessed that an appropriate starting range for this constellation of multiple, predatory offences was in the region of 12–14 years. Allowing for aggravation and some mitigation, the court considered a starting point of about 12 years was appropriate.

The court then set out how it would construct the overall sentence: a consecutive one-year sentence (concurrent between the two non-headline charges that were distinct) such that a total sentence in the region of 13 years would be appropriate before plea discount. Applying a 25% reduction for guilty pleas (as adopted for the trafficking offences at first instance), the resulting global sentence would be slightly over nine years.

The court therefore determined that the sentencing judge had fallen into clear error by not appreciating that the trafficking offending was so aggravated as to fall into the 12–14 year band. That error rendered the original overall sentence unduly lenient. The court considered and rejected the defence submissions that it should decline to uplift the sentence because the respondent was due to be released imminently and faced further sentencing elsewhere; the court said a modest allowance for double jeopardy could be accommodated within the sentence the court imposed.

The court also rejected an argument based on alleged disparity with sentences given to co-defendants, noting that differences in counts, number of victims, and charges justified different sentences and that an uplift of three years in this case was appropriate and proportionate.

Holding and Implications

Holding: The court granted leave to refer and found that the original sentence of seven years was unduly lenient. The court increased the overall effective sentence to nine years' imprisonment. The court ordered that individual sentences be adjusted accordingly in liaison with the parties.

Implications:

• The direct effect is that the respondent's global sentence was increased from seven to nine years' imprisonment; individual sentence adjustments were to be made in consultation with the parties.
• The court provided sentencing guidance for human trafficking offences in this jurisdiction: emphasising a fact-sensitive approach, identifying a headline offence, appropriate treatment of concurrency/consecutivity, applying the principle of totality, and careful assessment of aggravating features such as control of prostitution and drug supply to vulnerable victims. The court reminded practitioners that where ranges are to be suggested, trial judges should be given the material at first instance if possible.
• The court did not purport to introduce a rigid, new tariff but clarified that, in cases of comparable high culpability and harm with similar aggravating features, starting points in a higher band (as identified in the judgment) may be appropriate; the decision is fact-specific and intended to assist sentencing judges rather than to function as a binding formula.

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Panel: Judge Keegan LCJ (delivering the judgment), Judge Horner LJ, Judge O'Hara J. Counsel before the court included Attorney MacCreanor and Attorney Pinkerton for the prosecution, and Attorney Duffy, Attorney Chambers and Attorney McMahon for the respondent. The reference arose under the DPP's powers and was decided on 23 September 2025.