Attorney General's Reference No. 150 OF 2004

A sentence for sustained sexual offending against children may be unduly lenient where it fails to reflect the cumulative aggravating features. Those features include repeated offending, multiple young victims, abuse of trust, violence or threats, and attempted rape.

On a reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal may substitute a substantially higher sentence. It must nevertheless allow an appropriate reduction for the double jeopardy of increasing sentence after the original disposal.

Following a five-day trial at the Crown Court at Carlisle, the offender was convicted of 12 counts of indecent assault, attempted rape and assault occasioning actual bodily harm. The offences comprised repeated sexual abuse of two stepdaughters between 1977 and 1982, and later sexual abuse of a stepgranddaughter.

The trial judge imposed a total of four years’ imprisonment. The Attorney General sought leave to refer the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. The central issue was whether the total sentence adequately reflected the seriousness and cumulative aggravating features of the offending.

1. The court granted leave and held that the total sentence of four years’ imprisonment was unduly lenient. The offending involved three very young victims, repeated sexual assaults, a gross abuse of a position of trust and responsibility, violence and threats, and an attempted rape.

2. The offender’s age, lack of previous convictions and the lengthy delay before prosecution of the earlier offences were relevant considerations. They did not, however, justify a total which failed to reflect the gravity and persistence of the offending. The court had regard to the sentencing authorities, including Millberry, Attorney General's References of 2003 [2004] 1 Cr.App.R (S) 499, and Attorney General's Reference No3 of 1995 [1996] 1 Cr.App.R (S) 26.

3. The least total sentence properly available after trial was eight years. The sentence for attempted rape was increased from three to five years. The sentences for the offences against the stepgranddaughter were increased from one year to two years on each count, concurrent with each other and consecutive to the earlier sentences.

4. Allowing for double jeopardy, the court substituted a total sentence of seven years’ imprisonment. The remaining sentences stood.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the court granted leave and substituted a total sentence of seven years’ imprisonment: [2005] EWCA Crim 680.
• Crown Court at Carlisle: Following conviction after trial, the offender was sentenced to a total of four years’ imprisonment.