Attorney General v C.C.E. & Ors

Sentencing for sexual offences requires assessment of the harm to the victim, the offender’s culpability and the risk posed to society. Those considerations apply to sexual interference generally, not only rape, and deterrence is also material.

Historic offending ordinarily attracts the same sentencing starting point. The lapse of time is limited mitigation and must be weighed against the harm caused where a victim has kept abuse secret. A rehabilitative programme cannot justify a non-custodial sentence where the offending is so serious that custody is required. Sentences for distinct categories of offending may properly be consecutive, subject to totality and an appropriate reduction for double jeopardy on an Attorney General’s reference.

The Attorney General made three consolidated references under Criminal Justice Act 1988, contending that sentences imposed for historic sexual offences against young girls were unduly lenient.

TAG had been convicted at Plymouth Crown Court of child cruelty, indecent assault and two rapes, and received eight years’ imprisonment. NJK pleaded guilty at Swindon Crown Court to indecent assault and indecency with a child, but received concurrent three-year community rehabilitation orders. CCE pleaded guilty at Worcester Crown Court to three indecent assaults and received concurrent six-month terms with an extended licence.

The references raised the proper approach to the seriousness of historic sexual offending, the relevance of victim harm and risk, the availability of custody, and the lawful licence powers for offences committed before 30 September 1998.

1. The Attorney General’s references were allowed. The sentences in all three cases were unduly lenient and were increased, with reductions to reflect double jeopardy.

2. The court accepted that the sentencing dimensions identified in R v Millberry and Others for rape also apply to all sexual interference: harm to the victim, offender culpability and risk to society. Deterrence is an additional consideration. Historic offending does not ordinarily reduce the starting point materially. Before treating delay as mitigation, a court must assess the harm caused by the victim having kept the abuse secret for years.

3. TAG’s two rapes each warranted at least eight years because the victims were children and vulnerable, the offender had abused trust, and the offences involved threats, force or abduction. The child-cruelty offences were distinct in kind and required consecutive punishment, subject to totality. A total of 15 years would have been appropriate at first instance. The court substituted concurrent terms of 11 years for the rapes and two years for each cruelty offence, producing a total of 13 years’ imprisonment. The indecent-assault terms were increased to 15 months but remained concurrent with the rape sentences.

4. NJK’s repeated sexual abuse of a child was too serious for a community rehabilitation order. The possible unavailability of a prison sex-offender programme for a shorter sentence did not alter the need for custody. A total of four years would have been appropriate at first instance; the court substituted concurrent sentences producing a total of three years’ imprisonment.

5. CCE’s sentencing judge erred by reconstructing the sentence that might have been imposed had these offences been dealt with alongside earlier offending. The correct question was the proper sentence for these offences, taking account of all circumstances and the prolonged harm to the victim. Concurrent terms of 18 months would have been appropriate; twelve months on each count were substituted. Powers of Criminal Courts (Sentencing) Act 2000 section 85 was unavailable because the offences predated 30 September 1998, but section 86 permitted an extension of the licence period. The offender was ordered to remain on licence until the end of the twelve-month term.

• Court of Appeal (Criminal Division)—Allowed the Attorney General’s three consolidated undue-leniency references, quashed the relevant sentences and substituted increased custodial sentences: [2003] EWCA Crim 5.

• Plymouth Crown Court—TAG was convicted of child cruelty, indecent assault and rape, and sentenced to eight years’ imprisonment.

• Swindon Crown Court—NJK pleaded guilty to indecent assault and indecency with a child, and received community rehabilitation orders.

• Worcester Crown Court—CCE pleaded guilty to three indecent assaults and received concurrent six-month sentences with an extended licence period.