Brown & Anor, R. v

Factual and Procedural Background

This is an Attorney General's Reference under section 36 of the Criminal Justice Act 1988 seeking leave to refer two sentences as unduly lenient. Two offenders, referred to here as Defendant A and Defendant B, were convicted for involvement in the supply of Class A drugs (cocaine). Defendant A pleaded guilty at a plea and trial preparation hearing on 9 March 2023 to being concerned in supply (Count 1) and possessing with intent (Count 4). Defendant B pleaded not guilty initially but changed to guilty on the first day of trial on 21 August 2023 to counts on the indictment and later, in separate proceedings, pleaded guilty on 1 February 2024 at a magistrates' court to possession with intent to supply (the committal offence). The offenders were identified in a multi‑police operation investigating supply in The City. Significant quantities of cocaine and cash were seized from premises and vehicles associated with the offenders and their associates. Both offenders were sentenced on 27 January 2026: Defendant A to a total of 46 months' custody (46 months on Count 1, concurrent 12 months on Count 4); Defendant B to a total described in the transcript as ultimately 73 months' custody (61 months on Count 1, concurrent 12 months on Count 7, plus a consecutive 12 months for the committal offence). The Attorney General seeks leave to refer both sentences as unduly lenient on the basis that they fail to reflect the seriousness of the offending.

Legal Issues Presented

1. Whether the total sentences imposed on Defendant A and Defendant B were unduly lenient within the meaning and purpose of section 36 of the Criminal Justice Act 1988.
2. Whether the sentencing judge erred in applying reductions for guilty plea, delay and mitigation (including the effect of contested Newton hearings) such that the final sentences fell outside the range reasonably open to sentence.
3. Whether any reduction should have been made for delay in Defendant B's case given his actions and the procedural history (including subsequent offending and Newton hearings).

Arguments of the Parties

Attorney Robertson (on behalf of the Attorney General)

• The reductions applied for guilty plea, delay and mitigation produced final sentences that did not reflect the seriousness of the offending and were unduly lenient.
• In Defendant B's case the judge failed to apply the guilty plea guideline adjustment where there had been contested Newton hearings (discount should be reduced by half) and there was no proper basis for any reduction for delay.
• Even if a ten‑year starting point for category 1 harm and significant role was used, the aggregate reductions (delay and mitigation) were excessive.
• Reference was made to this court's observations in R v Sked and Others [2025] EWCA Crim 351 regarding delay and when reductions are inappropriate.

Attorney Preece and Attorney Saddington (on behalf of Defendant A and Defendant B respectively)

• Counsel for both defendants submitted there was mitigation and that any reductions for delay and other features, even if generous, did not render the sentences unduly lenient to the extent requiring review.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first stated the correct legal test for an unduly lenient sentence: that it falls outside the range a judge could reasonably consider appropriate and that s36 review targets gross error or substantial departures from sentencing norms. The court found the sentencing judge's oral remarks insufficiently clear to identify the notional sentence after trial and before discounts. The panel inferred from findings at contested Newton hearings that the judge intended a category 1 harm (import‑grade cocaine in the multi‑kilogram range) with a "significant role" starting point of ten years' custody for Count 1 in each case, although that was not expressly stated.

For Defendant A the judge did allow a 12‑month reduction for delay and a full one‑third reduction for plea, but the court found unexplained further reductions (amounting to a very large mitigation allowance) inconsistent with Defendant A's lack of good character. Absent explanation, the court concluded the resulting 46‑month sentence on Count 1 was unduly lenient.

For Defendant B the court accepted the Attorney General's contention that no reduction for delay was justified. Defendant B had delayed pleading, had committed a further significant offence while on bail, and required contested Newton hearings. Applying R v Sked and Others, the court held there was no proper basis to reduce sentence for delay. The court also found the sentencing judge had not explained how he concluded the notional sentences and reductions, and that the aggregate unexplained reductions produced an unduly lenient total sentence even allowing for prior good character and plea discounts. The court expressed concern about the judge's approach to the committal offence reduction but declined to disturb the consecutive 12‑month term because the Attorney General had not sought review of that specific sentence.

Having reached conclusions as to the appropriate starting points and permissible reductions, the court recalculated notional sentences and applied specified discounts to arrive at substituted term(s): for Defendant A a notional post‑trial figure reduced and then a full one‑third plea discount yielded five years and eight months on Count 1; for Defendant B the court concluded an eight years and one month sentence on Count 1 after proper application of reductions, with the existing concurrent 12 months on Count 7 unchanged and the consecutive 12 months for the committal offence left in place, producing a total of nine years and one month.

Holding and Implications

HOLDING: Leave to refer the sentences was granted. The court concluded the original sentences on Count 1 in each case were unduly lenient and substituted sentences as follows:

• Defendant A: sentence on Count 1 quashed and replaced with a term of five years and eight months' imprisonment; the concurrent 12 months on Count 4 remains unchanged.
• Defendant B: sentence on Count 1 quashed and replaced with a term of eight years and one month's imprisonment; the concurrent 12 months on Count 7 and the consecutive 12 months for the committal offence remain unchanged, producing a total term of nine years and one month.

Implications: The decision directly alters the custodial terms for the two defendants as specified. The court emphasized the necessity for sentencing judges to state clearly the notional sentence and the basis for reductions for delay and mitigation. No new legal precedent beyond application of existing guidance (including R v Sked and Others and the established purpose of s36 review) was created; the ruling applies established principles to the facts of these cases.