Attorney General Reference No 67 of 2004

A community sentence may be unduly lenient for sustained sexual abuse of young children within a family. Sentencing must reflect the breach of trust, the number and duration of offences, the number of victims, and the lasting harm caused.

Age, ill-health, lack of previous convictions and a guilty plea may reduce the appropriate custodial term. On an Attorney-General reference, the appellate court must also allow for the offender having been sentenced twice for the same conduct. Those matters may justify a substantial reduction from the sentence that should originally have been imposed, but do not necessarily make a non-custodial sentence appropriate.

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

The offender, aged 69 when sentenced, pleaded guilty to six counts of indecent assault on his stepson, one count of indecent assault on his stepdaughter, and one count of indecency with a child. The offending was committed between 1980 and 1989. It involved repeated sexual abuse of both children when they were young and caused them lasting psychological harm.

The Crown Court imposed a three-year community rehabilitation order with attendance at a sex-offender programme. The central question was whether that non-custodial sentence was unduly lenient and, if so, what substituted sentence should be imposed.

1. The court granted leave and held that the community rehabilitation order was unduly lenient. The offending involved a systematic and prolonged abuse of a position of trust. There were numerous serious assaults upon one child over years, repeated offending against another child, and significant lasting harm to both victims.

2. Those aggravating features required a substantial custodial sentence. Taking account of the offender’s age and ill-health, the court considered that the sentencing court should have imposed a total sentence of about three years’ imprisonment.

3. The court nevertheless gave substantial weight to the guilty pleas, the absence of previous convictions, the offender’s present health, and the double-jeopardy element inherent in resentencing following an Attorney-General reference. It also recognised that the offender would enter custody for the first time in respect of the offences.

4. The community order was quashed and replaced by concurrent sentences of 18 months’ imprisonment on each offence. The sentence was to run from the date on which the offender surrendered to custody. He was directed to surrender at Minehead police station by noon on the following day.

• Court of Appeal (Criminal Division): On an Attorney-General reference under section 36 of the Criminal Justice Act 1988, the court held that the Taunton Crown Court community order was unduly lenient and substituted concurrent terms of 18 months’ imprisonment: [2004] EWCA Crim 2863.

• Crown Court: Taunton Crown Court sentenced the offender on 30 April 2004 to a three-year community rehabilitation order with a condition to attend the Thames Valley Sex Offender Programme.