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Ball, R. v
Factual and Procedural Background
The Defendant was born on 10 November 2000. On 2 September 2025 she pleaded guilty in the Crown Court in The City to two offences: (count 1) possession of a Class A controlled drug with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971, and (count 2) possessing criminal property contrary to section 329(1)(c) of the Proceeds of Crime Act 2002. On 23 September 2025 Judge Gates sentenced the Defendant to 1,041 days' imprisonment on count 1 (effectively 3 years reduced by 54 days) and a concurrent 6 months' custody on count 2. A statutory surcharge order, forfeiture and destruction orders for drugs and paraphernalia, and forfeiture of £3,510 in cash were made. A deprivation order was made in respect of a mobile telephone and laptop subject to conditions. No evidence was offered on count 3 (a Class B possession offence) and a not guilty verdict was recorded.
The offending arose following execution of a section 23 warrant on 31 July 2025 at shared accommodation occupied by the Defendant and a Co-defendant. Cocaine was found in the garden (14.1g) and in a suitcase in a shed (14.52g); scales, packaging materials and a press were recovered from the premises; £3,510 in cash was recovered from the shared bedroom. The Defendant first appeared on 1 August 2025 and initially pleaded not guilty; she entered guilty pleas to counts 1 and 2 at the plea and trial preparation hearing on 2 September 2025.
The Attorney General applied for leave to refer the sentences to this Court under section 36 of the Criminal Justice Act 1988 on the ground that they were unduly lenient.
Legal Issues Presented
- Whether the sentences imposed were unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
- Whether the sentencing judge erred in fixing the sentence at the lower end of the relevant guideline range for a category 3, significant-role supply offence.
- Whether insufficient weight was given to aggravating features, including relevant previous convictions and offending committed on licence.
- Whether the sentencing judge gave excessive credit for mitigation (age, maturity, progress on licence) and for the guilty plea.
- Whether it was an error to deduct 54 days from the sentence to reflect time spent recalled to custody on a prior sentence.
Arguments of the Parties
Applicant's Arguments (Attorney General / Attorney Hole)
- The total sentence was unduly lenient despite the judge selecting count 1 as the lead offence and correctly categorising the offence.
- The judge erred by placing the case at the lower end of the category 3, significant-role range rather than within the guideline range appropriate to the true criminality.
- Insufficient upward adjustment was made for aggravating features, notably relevant previous convictions for similar offending committed shortly before the index offending and the fact the offences were committed while on licence.
- The judge allowed too great a reduction for the Defendant's age and other mitigation, and further erred by applying an additional 54-day reduction for time spent recalled, which was inappropriate given the short interval between release and reoffending and absence of material delay in disposal.
- Counsel relied on authority guiding the exercise of discretion in granting reductions for recalled time where excessive delay exists.
Defendant's Arguments (Attorney Quaife)
- The sentence was just and proportionate; the Recorder was an experienced judge who properly applied her judgment within the available range.
- The judge was entitled to place the Defendant's role towards the lower end of a significant role, consistent with the prosecution's case.
- The judge had regard to aggravating features including previous convictions and other factors indicating seriousness.
- The judge was entitled to give weight to the Defendant's age, maturity and positive progress while on licence; attaining 18 does not create a "cliff edge" for mitigation.
- The judge properly exercised discretion in allowing a 54-day reduction for time spent recalled; that reduction does not render the sentence unduly lenient.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Defendant A [2014] EWCA Crim 2348; [2015] 1 Cr App R(S) 29 | Example of exercising discretion to reduce sentence for time served where there has been excessive delay. | Relied on by the Applicant to argue that reduction for recalled time should be confined to cases such as excessive delay; cited and noted by the court in assessing the argument about the 54-day reduction. |
| Attorney-General's Reference (Case B) [2025] EWCA Crim 351; [2025] 2 Cr App R(S) 21 | Guidance that discretion on reducing for recalled time should not subvert Parliament's policy and requires a measured approach; no arithmetical formula. | Invoked by the Applicant to support a limited approach to deductions for recalled time; court referred to it in considering that the discretion must not subvert statutory policy. |
| R v Defendant C [2023] EWCA Crim 351 | Statement of the proper role of this Court on references: unduly lenient only where sentence falls outside range judge could reasonably consider appropriate. | Relied on by the Respondent to emphasise the limited role of this Court; court applied this test in declining to intervene. |
| Attorney-General's Reference (Case D) [2018] EWCA Crim 185; [2018] 1 Cr App R(S) 52 | Principle that attainment of 18 is not a "cliff edge" for sentencing mitigation. | Invoked by the Respondent to support the judge's approach to age and maturity mitigation; court accepted that age need not be treated as a cliff edge. |
| Attorney-General's Reference (Case E) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16 | Summarises principles governing references under section 36: deference to first-instance judge, range of reasonable sentences, exceptional circumstances required, correcting gross error. | The court recited these principles and applied them to conclude the sentencing judge's exercise of judgment did not amount to an unduly lenient sentence warranting referral. |
| Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R(S) 366 | Fundamental statement that the reference procedure is not an opportunity for this Court to re-sentence or substitute its own view of an appropriate sentence. | Cited by the court to reinforce the limited scope of intervention under section 36 and to frame the inquiry into whether the first-instance sentence fell outside the reasonable range. |
Court's Reasoning and Analysis
The court began by applying established principles governing references under section 36 of the 1988 Act: deference to the sentencing judge's assessment, that a sentence is only unduly lenient if it falls outside the range reasonably open to the judge, that leave should be granted only in exceptional cases, and that the procedure is to correct gross error. The court emphasised that it is not an opportunity to re-sentence or substitute its own view.
The court reviewed the sentencing process: the judge had categorised the supply offence as category 3 harm with significant role and identified the guideline starting point (4 years 6 months) and range (3 years 6 months to 7 years). The judge made findings about aggravating factors (exposure of others at the address, refusal to provide device PINs, previous convictions) and mitigating features (Defendant's age, immaturity, positive response to supervision and short period of compliance on licence). The judge adopted count 1 as lead offence, imposed concurrent sentence for count 2, applied a 25% reduction for a guilty plea, and deducted 54 days for time spent recalled to custody on a prior sentence.
In analysing the Applicant's submissions, the court accepted that the strongest point was the 54-day deduction but concluded that this lay within the sentencing judge's discretion and, as conceded by the Applicant, would not alone render the total sentence unduly lenient. The court found that the other complaints (placement at the lower end of the range, weight given to aggravation and mitigation) depended on evaluative judgments particularly suited to the sentencing judge. Applying the section 36 principles, the court was not persuaded that the sentencing judge had fallen into gross error or produced a sentence outside the reasonable range.
Holding and Implications
REFUSED — The application for leave to refer the sentences to this Court under section 36 of the Criminal Justice Act 1988 was refused.
Implications: The sentences imposed by the sentencing judge remain in force and are not referred for review. The court concluded that no new legal precedent was established; the decision applies the established principles governing section 36 references and affirms deference to the first-instance sentencing judge's evaluative judgments.
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