Attorney General's Reference No. 29 OF 2006

A sentencing court must mark very serious sexual offending by custody, but it need not deal with the case mechanistically. Where a young offender has substantial learning difficulties and presents rehabilitation needs, the court must strike a balance between punishment and rehabilitation. A custodial term is not unduly lenient merely because another judge might have imposed a longer term or an extended sentence. The appellate court will respect an experienced sentencing judge’s evaluative choice where that balance has properly been struck.

The Attorney General referred concurrent sentences of two and a half years’ detention in a young offender institution as unduly lenient under section 36 of the Criminal Justice Act 1988.

The 19-year-old offender had pleaded guilty at the first opportunity to repeated sexual offences against his two much younger sisters, committed when he was aged 16 to 18. The offending included oral rape of a child under 13, occurred over a prolonged period, involved a breach of trust and included threats. The offender had a mild learning disability, no previous convictions and limited access to prison sex-offender programmes.

The Attorney General contended that the term was unduly lenient or that an extended sentence should have been imposed. He did not submit that the offender should have been sentenced as dangerous under Chapter 5 of the Criminal Justice Act 2003.

1. Leave to refer was granted, but the reference was dismissed. The concurrent sentences of two and a half years’ detention in a young offender institution were not unduly lenient.

2. The offences were extremely serious. Their gravity required a custodial sentence. Material aggravating features were the victims’ very young ages, the repeated abuse of one victim, the abuse of two sisters, the breach of trust, the threats and the continuation of offending after the offender had been challenged.

3. The sentencing exercise nevertheless required an individual assessment. The offender was young, had no previous convictions, pleaded guilty at the first opportunity and had an IQ of 64, amounting to a mild learning disability. He could not benefit from accredited prison programmes for sex offenders and faced a risk of bullying or victimisation in custody.

4. The Court accepted that suitable accommodation and probation support in the community offered the best prospect of reducing future offending. An extended sentence could have been imposed for that purpose. However, the sentencing judge was entitled to conclude that the necessary support would in any event be available on release and to determine that an extended sentence was unnecessary.

5. The essential task was to balance punishment and rehabilitation. The fact that other judges might have imposed a longer custodial term or an extended sentence did not make this experienced judge’s sentence unduly lenient.

• 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 held that the sentence was not unduly lenient: [2006] EWCA Crim 1044.

• Mold Crown Court: On 10 February 2006, Judge John Rogers QC imposed concurrent sentences of two and a half years’ detention in a young offender institution for the sexual offences.