Court of Appeal Increases Sentence in R v Jonathan Da Silva Due to Undue Leniency

Citation: [2023] EWCA Crim 1624
Judgment on


In the case of R v Jonathan Da Silva, the Court of Appeal Criminal Division exerted its jurisdiction to review a sentence referred by His Majesty’s Solicitor General under Section 36 of the Criminal Justice Act 1988. The core contention of the Attorney General’s reference was that the initial sentence imposed by the Crown Court at Inner London was unduly lenient, thereby justifying a re-evaluation of the custodial decision.

Key Facts

Jonathan Da Silva, a 35-year-old hairdresser, who had no previous convictions, was charged with two counts of assault occasioning actual bodily harm, one count of intentional strangulation, one count of making a threat to kill, and one count of controlling or coercive behavior in an intimate or family relationship.

Mr. Da Silva initially pled not guilty and was set for trial. However, he later changed his plea to guilty before the commencement of his trial. For these offences, he was sentenced to an 18-month community order with several requirements, including rehabilitation and unpaid work. This was deemed potentially lenient by the Solicitor General, prompting this Appeal.

The legal principles at the heart of the Appellate review in this case revolve around sentence appropriateness, application of sentencing guidelines, and factors that justify the suspension of a sentence:

  1. Sentencing Guidelines - The case considered the relevant guidelines for each charged offence, delineating the starting points and classification under established categories.

  2. Unduly Leniency - The application of Section 36 of the Criminal Justice Act 1988 is pivotal only when the sentence passed in the Crown Court is believed to be unduly lenient in light of the sentencing guidelines.

  3. Mitigating and Aggravating Factors - The Court evaluated the role of mitigation such as remorse, positive good character, and lack of previous convictions balanced against aggravating factors like domestic context, violence, and abuse.

  4. Totality Principle - The court applied the principle of totality, asserting that disparate sentences for separate offences should not simply be combined in aggregate without considering proportionality.

  5. Suspension of Sentence - The Court considered factors for and against the suspension of a custodial sentence, as outlined in the sentencing guidelines, including risk to the public, prospect of rehabilitation, and strong personal mitigation.


After careful consideration, the Appellate Court granted leave for the Reference, indicating its agreement with the Attorney General’s contention of undue leniency. The Court concluded that a stricter sanction was warranted given the severity of the offences and set a sentence of 22 months’ imprisonment, but suspended for two years with the original rehabilitative requirements attached to each concurrent count.


The Court of Appeal upheld the principle that sentencing, even for a first-time offender, must adequately reflect both the severity of the crime and the need for public deterrence, while still preserving room for rehabilitation. The judgment of R v Jonathan Da Silva elucidates the delicate balancing act required between punishment and rehabilitation, the discretionary nature of sentencing, and the constraints and guidance provided by sentencing guidelines and principles such as totality and justice.

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