Attorney General's Reference No. 142 OF 2004

When considering whether a sentence is unduly lenient, the court may assess the total sentence, including an extended licence period, rather than the custodial term in isolation. A custodial term below that which the appellate court would itself have imposed does not necessarily require intervention. The court retains a discretion under Criminal Justice Act 1988, section 36, to leave the sentence undisturbed where the total sentence cannot properly be characterised as unduly lenient.

The Attorney-General, through the Solicitor-General, sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentence imposed on Richard Shane Grieve.

Following a trial at Preston Crown Court, the offender had been convicted of four indecent assaults and one offence of indecency with a child. The offences involved repeated sexual conduct towards a ten-year-old girl over about 18 months. He received an extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, comprising two years’ imprisonment and a two-year extended licence period, together with a consecutive three-month sentence for a Bail Act offence.

The central issue was whether the total sentence was unduly lenient and, if so, whether the Court of Appeal should exercise its discretion to alter it.

1. Leave was granted, but the reference did not result in any alteration of the sentence. The court would ordinarily have expected a custodial sentence of about three years for the sexual offences following a contested trial. A consecutive sentence for the Bail Act offence would then probably have been shorter.

2. The offending had serious aggravating features. The offender held a position of responsibility towards a young and vulnerable child, betrayed that trust, repeated the conduct over a substantial period, and committed serious sexual touching. The absence of prior sexual convictions and the fact that this was his first custodial sentence were matters of mitigation, but custody was inevitable.

3. Although the custodial element was below the level the court would have expected, the court doubted whether the total sentence could properly be called unduly lenient once the two-year extended licence period was considered. It was therefore not appropriate, in the court’s discretion under section 36 of the Criminal Justice Act 1988, to interfere.

• Court of Appeal (Criminal Division): On an Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave but declined to interfere with the sentence: [2005] EWCA Crim 654.
• Preston Crown Court: The offender was convicted on 1 October 2004 and sentenced on 1 November 2004 to an extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, with a consecutive sentence for a Bail Act offence.