Factual and Procedural Background
Attorney [Last Name] sought leave under section 36 of the Criminal Justice Act 1988 to refer a sentence as unduly lenient. On 7 November 2025, in the Crown Court at The City, the Defendant was sentenced by Judge Ryder to two years' imprisonment suspended for two years for wounding with intent (section 18 OAPA 1861) (count 1) and a concurrent term of 21 months' imprisonment suspended for two years for affray (section 3(1) Public Order Act 1986) (count 3). The suspended order included a mental health treatment requirement, a 20-day rehabilitation activity requirement and 125 hours unpaid work. The Defendant was ordered to pay compensation of £2,500 to the Victim and £1,752 toward prosecution costs, and a five year restraining order was imposed.
The Defendant pleaded guilty to the affray at trial outset (10% credit) and was convicted by jury of the section 18 offence. The offending occurred on 10 October 2023 when the Defendant, as part of a group of five (the offending group), followed the Victim's vehicle to the Victim's home in a residential area of The City and took part in a sustained group attack involving bottles (some broken) and fists. The Defendant inflicted multiple slashes with a broken bottle, causing a deep wound to the Victim's head requiring stitches. The Defendant was arrested on 12 October 2023; he declined to answer interview questions. The Defendant was 22 at the time, with no previous convictions; pre-sentence and clinical reports recorded remorse, insight, immaturity and psychological distress and recommended a mental health treatment requirement.
Legal Issues Presented
- Whether the sentence imposed was unduly lenient.
- Whether the sentencing judge erred in reducing the custodial term below the guideline category range by giving exceptional weight to mitigation (youth, mental health, family responsibilities and employment prospects).
- Whether the judge erred in failing to increase the sentence on the leading offence to reflect the totality of the offending when imposing a concurrent sentence for affray.
- Whether the judge erred in applying qualifying curfew days at the stage of determining the appropriate custodial term rather than as a final step in the guidelines (i.e. whether using qualifying curfew calculations to reduce the custodial term was an error of principle).
Arguments of the Parties
Attorney (Solicitor General)'s Arguments
- The sentence was unduly lenient; an immediate custodial sentence well in excess of two years was required.
- The Recorder was wrong to reduce the section 18 sentence below the bottom of the guideline category range given the seriousness of the offence; reductions for age, caring responsibilities and mental health were overstated.
- The Recorder failed to increase the section 18 sentence to reflect the broader and serious affray when imposing concurrent sentences.
- The Recorder erred in applying qualifying curfew reductions before determining the appropriate custodial term (relying on R v SA [2022] EWCA Crim 1790 and R v Mohamed [2025] EWCA Crim 235).
Attorney (Defendant's Counsel)'s Arguments
- The Recorder was entitled, having heard the trial and mitigation, to treat mitigation as justifying departure outside the guideline range.
- The Defendant's role was less than leading except for the seconds when he caused injury; he picked up the bottle after being struck.
- The Recorder, an experienced judge, properly exercised discretion including consideration of rehabilitation and time since offending when addressing qualifying curfew.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v SA [2022] EWCA Crim 1790 |
Qualifying curfew / timing of credit for time on electronically monitored curfew as a final step in sentencing guidelines (not to be used to determine the appropriate custodial term). |
The court relied on the principle to conclude the Recorder erred by using qualifying curfew days to reduce the custodial term rather than applying them at the final step. |
| R v Mohamed [2025] EWCA Crim 235 |
Similar authority on the improper use of qualifying curfew days and the sequencing required by the guidelines. |
The court treated Mohamed as analogous and found the Recorder, like the judge in Mohamed, had been influenced to reduce the custodial term to enable suspension, which is an error of principle. |
Court's Reasoning and Analysis
The court acknowledged the Recorder's careful and structured approach and accepted the Recorder's factual findings, including that the Defendant played a leading role in the wounding and that the assault was persistent and involved a highly dangerous weapon. The court accepted the starting point for the section 18 offence was five years' custody and that the affray was serious and constituted separate, significant offending.
The court analysed mitigation: the Defendant's remorse, insight, work history and references were significant but his youth (22) warranted only modest reduction; he was not "particularly immature." On balance the court considered the mitigation insufficient to justify reducing the overall sentence to the level imposed by the Recorder.
The court identified a clear error of principle in the Recorder's treatment of qualifying curfew days: the guidelines require determination of the appropriate custodial term before applying credit for qualifying curfew (step 9). The Recorder had effectively used qualifying curfew calculations to reduce the custodial term so as to permit suspension, mirroring the error identified in R v Mohamed.
Taking all circumstances together (culpability, separate serious affray, limited mitigation), the court concluded the overall sentence should not be less than four years' imprisonment. The court then adjusted the sentence downward slightly to reflect the Defendant's compliance with suspended sentence conditions and partial completion of unpaid work since sentencing.
The court directed that the substituted sentences take effect when the Defendant surrenders to custody, ordered credit for half of qualifying curfew time if applicable under section 325 Sentencing Act 2020 (725 days on the information available), and set a surrender date at The City Police Station.
Holding and Implications
Core Ruling: Leave was granted; the sentences imposed by Judge Ryder were quashed and substituted.
Direct effect on the parties: on count 1 (section 18) the court substituted a sentence of three years and six months' imprisonment; on count 3 (affray) the court substituted a concurrent sentence of two years' imprisonment. No other elements of the sentence were changed. The substituted sentences take effect on surrender to custody, and the Defendant will receive full credit for half the time spent under qualifying curfew if the curfew qualifies (court recorded the period as 725 days subject to correction).
Implications: The court identified and corrected an error of principle in the sequencing of applying qualifying curfew credit (consistent with cited authorities). No novel legal precedent beyond applying existing authorities was stated; the decision's immediate consequence is the imposition of custodial sentences as substituted above.