M, R v

Where an Attorney General’s reference reveals that a sentence is unduly lenient, the Court of Appeal may substitute a substantially longer sentence where the gravity of the offending and the need to protect the public require it. Psychiatric material may materially affect the assessment of public risk, but a sentence cannot be increased simply to make an offender eligible for a particular treatment scheme. Where a hospital order and restriction are unavailable, that does not prevent the court from using its sentencing powers to protect those at risk.

The Attorney General referred, under section 36 of the Criminal Justice Act 1988, a sentence imposed at Reading Crown Court on 1 May 2002. The offender had pleaded guilty to abduction with intent to have unlawful sexual intercourse, indecent assault and possessing an imitation firearm with intent to cause fear of violence. He received concurrent sentences totalling three years’ imprisonment.

The offences involved the abduction of a 13-year-old girl at apparent gunpoint, sexual conduct and a threat of rape. Further psychiatric evidence before the Court of Appeal diagnosed schizotypal disorder and paedophilia, and addressed the serious risk posed to peri-pubertal girls. The central issues were whether the concurrent three-year sentence was unduly lenient and what sentence was appropriate to reflect both the offending and public protection.

1. The court granted leave and held that the total concurrent sentence of three years’ imprisonment was unduly lenient. The seriousness of the abduction, the use of what appeared to be a gun, the sexual humiliation, the threat of rape and the serious consequences for the 13-year-old victim substantially outweighed the mitigation of previous good character, an early guilty plea and the offender’s voluntary release of the victim.

2. The additional psychiatric reports materially altered the information available since sentence. They established schizotypal disorder and paedophilia, and supported the conclusion that the offender posed a serious, or potentially grave, risk to peri-pubertal girls. The public, and particularly young females, required protection.

3. The court could not increase a sentence merely to make the offender eligible for the Broadmoor DSPD pilot scheme. Nor were the criteria for a hospital order under section 37 of the Mental Health Act 1983, with the minimum necessary restriction under section 41, available.

4. Using its sentencing powers, the court substituted a ten-year sentence for indecent assault under section 85 of the Criminal Courts Sentencing Act. It comprised five years for the offence and a further three years for public protection under section 82(b), making eight years’ imprisonment to be served. The psychiatric reports and judgment were to accompany the offender to prison for the governor’s attention.

• Court of Appeal (Criminal Division): On an Attorney General’s reference, the court granted leave and substituted a ten-year sentence for the concurrent three-year sentence.
• Reading Crown Court: On 1 May 2002, Judge Lait imposed concurrent sentences totalling three years’ imprisonment following guilty pleas.