Attorney General's Reference No 34 of 2004

A sentence for a serious indecent assault on a child may be unduly lenient where the sentencer gives excessive weight to the offender’s personal circumstances and insufficient weight to the victim’s psychological harm, the offender’s culpability, public protection and deterrence. Psychological injury is not of lesser importance than physical injury. A planned assault involving exploitation of trust, masturbation and penetration warrants a substantial custodial sentence, notwithstanding a guilty plea, previous good character and the absence of a course of offending.

On an Attorney General’s reference, the increase should nevertheless reflect the offender’s double jeopardy in being resentenced.

The offender pleaded guilty to indecent assault on a 14-year-old boy, contrary to section 15(1) of the Sexual Offences Act 1956. The victim had been invited to stay at the offender’s home so that he could attend a football match. The offender exploited the victim’s distress about family matters and committed a prolonged sexual assault involving masturbation and penetration.

The sentencing judge imposed six months’ imprisonment and an extended licence period of two and a half years. Mitigation focused heavily on the asserted consequences for the offender’s sons and parents. On a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, the court considered whether that sentence was unduly lenient.

1. The court granted leave and held that the sentence of six months’ imprisonment was unduly lenient. It substituted a sentence of two years’ imprisonment.

2. The assault was serious. The offender abused a position of trust, planned the opportunity over a short period, exploited the victim’s vulnerability and committed an assault involving masturbation and penetration. The victim’s immediate distress, subsequent post-traumatic stress disorder and loss of confidence showed serious psychological harm.

3. The court applied the sentencing approach reaffirmed in Attorney-General’s References Nos 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41 and 42 of 2003 [2003] EWCA Crim 1973. Sentencers must consider the harm caused, culpability, risk to the public and deterrence. Good character does not justify a substantial reduction. The trial judge had placed too much weight on the interests of the offender and his family, and too little on the victim’s interests and public protection.

4. The absence of physical violence did not reduce the importance of the victim’s psychological injury. The guilty plea was not entitled to full credit because it was entered only after the plea and directions hearing. The absence of previous convictions and the fact that this was a single offence were mitigating, but did not materially alter the seriousness of the offending.

5. Having regard to the sentencing authorities, the appropriate sentence was between two and a half and three years’ imprisonment. The substituted term was reduced to two years to reflect double jeopardy. The extended licence period was reduced to two years. The court also made the required disqualification order under section 28 of the Criminal Justice and Court Services Act 2000.

• Court of Appeal (Criminal Division): On an Attorney General’s reference, the court held the original sentence unduly lenient and substituted two years’ imprisonment: [2004] EWCA Crim 1470.
• Sentencing judge: Following the offender’s guilty plea, imposed six months’ imprisonment with an extended licence period of two and a half years.