Attorney General's Reference No. 86 OF 2005

For a serious attempted sexual offence against a very young and vulnerable child, a community sentence may be unduly lenient where it fails to reflect the gravity of the offending and cannot deliver the work needed to reduce the risk of further offending. The offender’s learning difficulties, guilty plea and personal mitigation required careful consideration, but did not make a non-custodial sentence appropriate on these facts.

On an Attorney-General reference, the Court may quash such a sentence and substitute an extended custodial sentence where that is necessary both to protect the public and to secure rehabilitation. In fixing the substitute sentence, it must allow for the double-jeopardy element of sentencing the offender again.

The offender pleaded guilty at Manchester Crown Court to attempted rape of his three-year-old niece. The judge imposed a three-year community rehabilitation order, with residence and supervision conditions, after receiving psychiatric, psychological and probation reports. The offender had mild learning difficulties and could not access the usual community sex-offender programme.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. Further reports showed that the intended offence-focused work could not be delivered under the community order and that the offender presented a continuing risk to children. The central issue was whether the community sentence adequately reflected the offence and could manage the identified risk.

1. The reference was allowed. The Court granted leave, held that the community rehabilitation order was unduly lenient, and quashed it.

2. The attempted rape was exceptionally serious because the child was three years old and vulnerable. The full offence was not completed because the offender was interrupted, rather than because he lacked the required intention. His conduct in changing clothes in the child’s bedroom also showed planning and preparation.

3. The Court took account of the guilty plea, previous good character apart from a caution, learning difficulties, lack of mental illness, and the offender’s limited understanding of the gravity of his conduct. It also recognised that the original judge had acted on the then-current probation recommendation. Those matters did not justify a community penalty. Even if one had been appropriate initially, later reports showed that no suitable adapted programme was available in the community and that the necessary work to reduce reoffending could not be carried out under the order.

4. A custodial sentence of at least five years would ordinarily have been expected, even after a guilty plea. Allowing for double jeopardy and the other circumstances, the Court substituted an extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000: three and a half years’ custody followed by an 18-month extended licence period. It ordered the offender to surrender by noon the following day, disqualified him from working with children, and recorded his indefinite liability under the notification provisions.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the Court held the Crown Court community order to be unduly lenient and substituted an extended sentence: [2005] EWCA Crim 3637.

• Manchester Crown Court: On 8 July 2005, imposed a three-year community rehabilitation order for attempted rape, with a residence condition and associated protective orders.