Garner, R. v

Factual and Procedural Background

The Defendant, born 23 June 1951 (aged 74), pleaded guilty on 29 August 2025 in the Crown Court at The City to multiple offences. On 31 October 2025 Judge Kelson sentenced the Defendant: on count 1 (aggravated burglary contrary to s.10(1) of the Theft Act 1968) 4 years' imprisonment; on count 2 (possessing an imitation firearm with intent to cause fear of violence, s.16A Firearms Act 1968) no separate penalty; on count 3 (wounding with intent, s.18 Offences Against the Person Act 1861) 3 years' imprisonment concurrent; on count 4 (having an article with a blade or point, s.139(1) Criminal Justice Act 1988) no separate penalty. A statutory surcharge, a 10-year restraining order, and forfeiture/destruction orders for a gun, a lock-knife and an axe were imposed; an additional count was ordered to lie on file.

The Solicitor General applied under section 36 of the Criminal Justice Act 1988 for leave to refer the sentences as unduly lenient.

Legal Issues Presented

1. Whether the total sentence imposed was unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
2. Whether the sentencing judge erred in categorising culpability for aggravated burglary (placement in category 1B rather than category 1A or culpability A rather than B) and in failing to impose separate penalties for the weapons offences.
3. If the sentences were unduly lenient, what substitute sentences should be imposed for each count and what is the appropriate total sentence (with concurrency considerations)?

Arguments of the Parties

Attorney Newcombe (on behalf of the Solicitor General)

• The 4-year total sentence was unduly lenient.
• The sentencing judge erred in reducing culpability from A to B for aggravated burglary based on alleged confusion of the Defendant's mind; the guideline for offenders with mental/neurological disorders should have been considered and, on the evidence, did not justify reduced culpability.
• Given planning, targeting and weapons, culpability A and category 1 harm applied, yielding a starting point of 10 years (range 9–13).
• The judge misweighed aggravating and mitigating factors and inappropriately reduced the notional sentence below the category range bottom if category 1A applied; if 1B applied, mitigation should not have reduced the notional sentence within the category.
• Full credit of one-third for guilty plea was accepted; one minor point on credit for the s.18 plea was raised but said not to affect overall length.
• Totality: sentences for weapons should not have been recorded as no separate penalty; they were sufficiently serious to warrant concurrent custodial terms reflecting overall criminality.

Attorney Sands (on behalf of the Defendant)

• Accepted harm was category 1; maintained before sentencing that culpability fell within A (but at lower end), yet submitted the judge was entitled to place the case in category 1B.
• Argued the sentencing judge legitimately assessed the Defendant's confused state of mind from available material (including the Liaison and Diversion report) and drew common-sense conclusions without formal medical evidence.
• Mitigating features (age 74, long work history, physical ailments, remorse, positive character references, offences out of character) significantly outweighed aggravating factors.
• Acknowledged that separate concurrent sentences should have been announced for weapons offences and that full credit overall was due.
• Asked this Court, if finding undue leniency, to exercise discretion in the Defendant's favour when determining substituted sentences.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began from established s.36 principles and recognised the sentencing exercise as difficult, balancing serious aggravating features (violence in the victim's home, use of an axe and discharged imitation firearm, vigilantism, targeted attack on a vulnerable victim) against strong mitigation (advanced age, out-of-character offending, remorse, positive references, medical/mental-health material). The Court accepted the sentencing judge was entitled to place the aggravated burglary in category 1B rather than 1A, and that assessment and weighing of factors are primarily for the trial judge.

Nevertheless, the Court found the notional sentence the judge identified for a category 1B offence (6 years after trial) was too low given the overall gravity and the existence of other offences for which concurrent sentences were required. The Court concluded it was wrong in principle to impose no separate penalty for the two weapons offences; those offences were serious and warranted custodial sentences to run concurrently with the lead count.

Applying the relevant guideline starting points and ranges for the weapons offences and balancing mitigation (including full credit for guilty pleas), the Court determined appropriate substituted terms: count 2 (imitation firearm) 2 years' imprisonment; count 4 (bladed article) 18 months' imprisonment. For aggravated burglary the Court assessed the notional after-trial sentence as 9 years, and after full credit reduced that to 6 years on count 1. The sentence on count 3 remained at 3 years concurrent. All sentences were to run concurrently to produce a total of 6 years' imprisonment.

Holding and Implications

DISPOSED OF: The Court granted the Solicitor General leave to refer the sentences under section 36 of the Criminal Justice Act 1988 and substituted the following sentences:

• Count 1 (aggravated burglary): 6 years' imprisonment.
• Count 2 (possession of an imitation firearm with intent): 2 years' imprisonment.
• Count 3 (wounding with intent): 3 years' imprisonment (unchanged).
• Count 4 (having an article with a blade or point): 18 months' imprisonment.
• All sentences to run concurrently; total effective sentence 6 years' imprisonment.

Implications: The direct effect is substitution of the sentences as set out above. The opinion applied established principles for s.36 referrals and did not purport to establish a new precedent beyond applying existing authorities.