Factual and Procedural Background
This is an application by the Solicitor General for leave to refer a sentence under section 36 of the Criminal Justice Act 1988 on the grounds that it was unduly lenient and, if so, for this court to increase it. The application was heard by Judge Edis (the Vice President). Attorney White appeared for the Solicitor General and Attorney Arif appeared for the Offender.
The Offender, aged 51, pleaded guilty on 18 August 2025 in the magistrates' court to: (1) threatening to kill contrary to section 16 of the Offences Against the Person Act 1861; and (2–4) three counts of possession of a bladed article in a public place contrary to section 139 of the Criminal Justice Act 1988. She was committed to the Crown Court for sentence, received full credit for her guilty pleas, and was sentenced at the Crown Court on 19 September 2025 by Judge Cannings. An error in credit allocation for concurrent sentences was corrected under the slip rule on 30 September 2025.
The original sentencing outcome was a suspended sentence order: a custodial element of 12 months' imprisonment suspended for 2 years (with requirements including a 9-month alcohol treatment requirement and up to 35 rehabilitation activity requirement days) imposed for the first charge, with concurrent suspended terms of 3 months' imprisonment for charges 2–4. The Solicitor General sought review and increase of that sentence under s.36 CJA 1988.
Legal Issues Presented
- Whether the sentence imposed was unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
- If unduly lenient, whether the appellate court should increase the sentence and, if so, to what immediate custodial term.
- Whether the sentencing judge misapplied the relevant Sentencing Council guidelines (including categorisation of culpability and harm), double counted mental disorder as mitigation, and erred in suspending the sentence given the seriousness and aggravating features (including racially motivated targeting and weapons possession).
Arguments of the Parties
Solicitor General's Arguments
- The sentencing judge mischaracterised the level of harm for the bladed article offences; they fell into category 1 (and culpability A), giving a starting point of 18 months for a single offence.
- The judge failed to give sufficient weight to aggravating features, including the racially motivated element targeting asylum seekers, warranting a significant increase above the guideline starting point.
- The judge took the Offender's mental disorder into account twice (once in culpability assessment and again as mitigation) and gave it excessive weight; alcohol consumption was the principal motivating factor.
- The appropriate outcome would have been a term exceeding 2 years (such that suspension would not be available); alternatively, if 2 years or less, it should not have been suspended because only immediate custody was appropriate.
Offender's Arguments
- The sentencing judge applied the statutory guidelines correctly, identified the appropriate starting points, and after full credit for the guilty plea reached a level at which a suspended sentence was available.
- The judge considered the Imposition Guideline and the Mental Disorders Guideline and reasonably concluded that suspension was permissible.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court reviewed the facts: the Offender travelled with three knives, stated an intention to kill or seriously injure presumed asylum seekers, spoke of the plan to a shop employee who alerted police, had booked a hotel room (suggesting plans to access residents), and made violent statements on arrest and in the police vehicle. The court noted prior convictions including recent racially aggravated offending in 2023.
The court analysed application of the Sentencing Council guidelines. For possession of bladed articles the guideline contains culpability A (including hostility based on presumed characteristics) and harm categories; the court concluded the bladed article offences were culpability A and category 1A with a starting point of 18 months' custody. For the offence of threatening to kill the court noted the guideline's culpability and harm categories (with category 1A attracting a starting point of 4 years) and observed that although the guidelines do not explicitly identify immediate intent to kill as a step‑1 factor, such intent remains plainly relevant to sentencing.
The court criticised the sentencing judge for failing to stand back from the detailed guideline exercise to assess the overall seriousness and obvious risk posed by the offender's conduct and intentions. The court accepted there was sympathy for the Offender's difficult upbringing and mental health issues, and that alcohol significantly aggravated her condition, but concluded the judge erred in categorisation and in placing excessive weight on the mental disorder (and/or double counting it), and that the offending was sufficiently serious, given weapons and racist motivation and the prior convictions, that only immediate custody was appropriate.
The court determined that a proper assessment led to a sentence of 3 years' imprisonment for the principal offence before plea discount, reduced by one‑third for the guilty plea to 2 years, which should be immediate custody. Concurrent terms of 3 months for the other offences would remain as imposed by the sentencing judge; other orders previously imposed were to stand.
Holding and Implications
APPLICATION GRANTED; SENTENCE INCREASED
Holding: The court granted leave to refer, quashed the suspended sentences previously imposed, and substituted an immediate custodial sentence of 2 years' imprisonment for the first charge (after plea discount), with concurrent terms of 3 months' imprisonment for charges 2–4. Other orders made by the sentencing judge were left in place.
Implications: The direct effect is immediate custody for the Offender (with directions for surrender and acknowledgment of time in custody on remand). The opinion does not purport to create a new binding precedent; it identifies that guideline formulation does not preclude sentencers from taking very imminent lethal intent and weapons possession into account as aggravating factors and suggests the Sentencing Council may consider whether guideline expression should be revisited.