Attorney General Reference No 125 Of 2004

A sentence for sustained sexual abuse of a child may be unduly lenient where it fails to reflect the prolonged and escalating nature of the offending, the breach of trust, the victim’s vulnerability and the absence of remorse. The offender’s age, ill-health, previous good character and caring responsibilities may mitigate sentence, but they do not remove the need for a sentence commensurate with the seriousness of the offences.

On an Attorney-General reference, the Court may reduce the sentence it would otherwise impose to reflect double jeopardy and relevant personal circumstances when substituting a sentence for one held to be unduly lenient.

The offender was convicted at Maidstone Crown Court of three indecent assaults, an offence of indecency with a child, and two attempted rapes of his granddaughter. The offences were committed repeatedly between 1992 and 2000, when the complainant was between six-and-a-half and 13 years old.

On 20 September 2004, the trial judge imposed a total sentence of three years’ imprisonment, principally for the attempted rapes, with concurrent sentences for the other offences. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.

The central issue was whether the three-year total properly reflected the gravity of the offending and, if not, what substituted sentence was appropriate after allowing for double jeopardy and the offender’s age, ill-health and responsibilities towards his ill wife.

1. The court granted leave and held that the total sentence of three years’ imprisonment was unduly lenient. It quashed the three-year sentences for the attempted rapes and substituted concurrent sentences of four-and-a-half years’ imprisonment.

2. The offending was exceptionally serious. It involved a deliberate and escalating course of sexual abuse over many years, committed against a young child within the family and in a gross breach of trust. The assaults occurred repeatedly, possibly hundreds of times. The two attempted rapes, although occurring on one occasion and not completed rapes, remained grave offences.

3. The court took account of the offender’s lack of previous convictions, age, diabetes and high blood pressure. It also recognised his wife’s serious ill-health and his former role in caring for her. Those matters did not adequately justify the original total sentence. In the light of the circumstances and the sentencing authorities referred to, including R v Millberry [2003] 1 Cr App R 396, the court would have expected a total sentence of about six years’ imprisonment at first instance.

4. When fixing the substituted term, the court gave effect to double jeopardy and to the need for the offender to resume care for his wife as soon as reasonably possible. Those considerations justified a reduction from the sentence otherwise indicated, but not the retention of the original sentence.

• Court of Appeal (Criminal Division) Granted leave under section 36 of the Criminal Justice Act 1988, held the total sentence unduly lenient, and substituted concurrent sentences of four-and-a-half years’ imprisonment: [2005] EWCA Crim 259.
• Maidstone Crown Court Following conviction, imposed a total sentence of three years’ imprisonment and ancillary protective orders.