Attorney General's Reference Nos. 153 of 2004 and 14 & 2 of 2005

On a reference under section 36, a sentence is unduly lenient only if it falls outside the range reasonably open to the sentencing judge. The Court retains a discretion whether to increase such a sentence and must allow for double jeopardy.

For rape, the Milberry guideline remained applicable after the Sexual Offences Act 2003. Sentencers must assess harm, culpability, risk to the public and deterrence. The guideline starting points are illustrative rather than exhaustive. A previous intimate relationship does not justify reducing a sentence for rape. Youth, an early plea and totality may nevertheless mean that a severe sentence imposed on a young offender is lenient without being unduly lenient.

The Attorney General referred three sentences under section 36 of the Criminal Justice Act 1988.

• Phipps: following convictions at Swindon Crown Court for three rapes and assaults on his former partner, the offender received seven years’ imprisonment.
• B: a 16-year-old pleaded guilty at Warwick Crown Court to rape of a 12-year-old stranger, burglaries and an attempted burglary. He received six years’ detention.
• Basra: following convictions at Minshull Street Crown Court for two rapes, indecent assault and drug offences, after covertly administering GHB to the victim, the offender received four years’ imprisonment.

The common issue was whether each sentence was unduly lenient and, if so, what substituted sentence should be imposed.

1. The references were allowed in respect of Phipps and Basra, but not B. Under section 36 of the Criminal Justice Act 1988, the court may increase a sentence only where it falls outside the range which a judge properly considering all relevant factors could reasonably regard as appropriate. It does not intervene merely because it would have imposed a higher sentence. Even where a sentence is unduly lenient, the court has a discretion whether to increase it.

2. The guidance in R v Milberry [2003] 1 Cr App R 396 remained the primary guidance for rape sentencing after the Sexual Offences Act 2003. The court must consider the victim’s harm, the offender’s culpability, risk to society and deterrence. The five-, eight- and 15-year starting points are guides. The listed features for each category are not exhaustive.

3. Phipps: the seven-year sentence was unduly lenient. The repeated violent rapes, the victim’s vulnerability following intimidation and termination of pregnancy, and the history of violence justified the eight-year starting-point category. A former intimate relationship could not reduce the seriousness of rape; it might instead amount to a betrayal of trust. The proper sentence was ten years, reduced by one year for double jeopardy. Nine years’ imprisonment was substituted for the rape sentences; the assault sentences remained unchanged.

4. B: although the six-year detention sentence was merciful, it was not unduly lenient. The judge had properly recognised the extreme gravity of rape of a 12-year-old stranger involving violence and threats. The offender’s age, early guilty plea, prospects of rehabilitation and the totality of the rape and burglary offending justified a materially lower sentence than would have been imposed on an adult.

5. Basra: the four-year sentence was unduly lenient because it failed to follow the applicable rape guidance. Repeated rape in one attack and the covert use of a drug to incapacitate the victim justified an eight-year starting point. The proper sentence was nine years, reduced to eight for double jeopardy. The four-year sentence was quashed and eight years’ imprisonment substituted.

• Court of Appeal (Criminal Division): on the Attorney General’s references under section 36 of the Criminal Justice Act 1988, increased Phipps’s rape sentences from seven to nine years’ imprisonment and Basra’s total sentence from four to eight years’ imprisonment; declined to interfere with B’s six-year detention sentence.
• Crown Court: Swindon Crown Court sentenced Phipps to seven years’ imprisonment; Warwick Crown Court sentenced B to six years’ detention; Minshull Street Crown Court sentenced Basra to four years’ imprisonment.