Attorney General's Reference No 62 of 2004

A sentence for rape may be lenient without being unduly lenient. Rape is always a grave offence, but it carries no fixed minimum sentence. The sentencing court must balance its seriousness against all the circumstances of the offence and the offender. On an Attorney-General's reference, the Court of Appeal will give proper weight to the trial judge's particular opportunity to assess those circumstances. It will not increase a sentence merely because a higher sentence might also have been justified.

The Solicitor-General, on behalf of the Attorney-General, sought leave under section 36 of the Criminal Justice Act 1988 to refer a rape sentence as unduly lenient.

The offender had been 16 at the time of the offence and had no previous convictions. The complainant was of a similar age and heavily intoxicated. The prosecution relied on her vulnerability, her age and the offender's lack of remorse. The defence relied on his youth, traumatic background, good character, vulnerability and low assessed risk of reoffending.

The sentencing judge had heard the contested trial. The central issue was whether the sentence, although accepted to be lenient, crossed the threshold of being unduly lenient.

1. The reference was dismissed. The sentence was lenient, but it was not unduly lenient and was left unchanged.

2. Rape is invariably a very serious offence. It has no fixed minimum sentence, however, and a sentencing judge must consider all the circumstances when fixing sentence.

3. The judge had to balance the gravity of the offending against the offender's particular circumstances. These included his youth at the time of the offence, lack of previous convictions, good character, vulnerability, traumatic personal history and low assessed risk of reoffending. The Court also recognised the complainant's youth and intoxication, and the offender's lack of expressed remorse.

4. The sentencing judge had heard the trial and was especially well placed to evaluate its circumstances. There was no basis to conclude that he had failed to use that advantage or to perform the necessary balancing exercise.

This was a statutory Attorney-General's reference, rather than an appeal between parties.

• Court of Appeal (Criminal Division) The Court held that the sentence was lenient but not unduly lenient, and left it undisturbed.
• Sentencing court An unnamed sentencing judge imposed sentence after a contested rape trial. The sentence itself is not stated in the judgment.