Attorney General Reference No 98 of 2003

A finding that a sentence is unduly lenient does not require the Court of Appeal to increase it. In exercising its discretion under Criminal Justice Act 1988, the court may take account of the reduced term that would have to be imposed on an Attorney General’s reference and of the proper use of that procedure.

A custodial term may be unduly lenient where a sexual assault on a child involves physical compulsion, substantial harm, offending while on licence and a high assessed risk to young people, even if the assault was brief.

The offender was convicted after trial at Leicester Crown Court of indecently assaulting a boy aged nine. The assault involved seizing and kissing the child and touching his genitals. The child suffered serious short-term distress and continuing distrust of strangers.

The Recorder imposed an extended sentence with a 12-month custodial term. Later that day, he also ordered the offender to serve two years of the outstanding balance of an earlier extended sentence. The Attorney General sought leave under Criminal Justice Act 1988 to refer the 12-month custodial term as unduly lenient.

The central issue was whether the term was unduly lenient and, if so, whether the court should increase it.

1. Leave was granted for the Attorney General’s reference under section 36 of the Criminal Justice Act 1988.

2. The court held that the 12-month custodial term was unduly lenient. The victim was very young. The offender used physical compulsion to commit the assault. The offence had a significant effect upon the victim, whose long-term harm could not yet be known. It was committed while the offender was on licence for an earlier extended sentence, and a probation report assessed the risk of physical and emotional harm to young people as high.

3. The brief duration of the assault was mitigating, but it did not prevent the term from being unduly lenient. The court rejected the submission that the absence of violence and the short duration made 12 months appropriate.

4. The court nevertheless declined to interfere. An increase on an Attorney General’s reference would have required a custodial term lower than that which would otherwise have been appropriate in the Crown Court. The court also considered that defensive references by the Attorney General were undesirable.

5. Accordingly, the court formally declared the custodial term unduly lenient but left it unchanged.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the court granted leave under section 36 of the Criminal Justice Act 1988, held the 12-month custodial term unduly lenient, but declined to alter it.
• Leicester Crown Court: Following conviction for indecent assault, the Recorder imposed a four-year extended sentence with a 12-month custodial term. Later that day, he ordered the offender to serve two years of the outstanding balance of an earlier extended sentence before that custodial term.