French & Anor, R. v (Attorney General's Reference No 14 & No 15 of 2006)

Rape sentencing guidance must not be applied mechanically. The court must assess the offending as a whole, and exceptionally grave features may justify a starting point above the usual range.

A guilty plea entered at the first reasonable opportunity ordinarily attracts the full one-third reduction. The strength of the prosecution case, including where an offender is effectively caught red-handed, is not by itself a reason to reduce that credit.

On an Attorney General reference, double jeopardy remains a discretionary consideration. It may carry little or no weight where the offender faces a lengthy period in custody or a discretionary life sentence.

The Attorney General made consolidated references under Criminal Justice Act 1988, section 36, contending that sentences imposed at St Albans Crown Court on Alan Webster and Tanya French were unduly lenient.

Webster had received life sentences for raping a baby, with a minimum term of six years, together with concurrent sentences for other sexual offences. French, who was 17 or 18 at the time and had been corrupted by Webster, received an extended sentence comprising five years' custody and a five-year extension period.

The common issues were whether the starting points were unduly lenient, whether each offender should receive the full one-third credit for an early guilty plea despite overwhelming evidence, and whether any increase for Webster should be reduced for double jeopardy.

1. The reference was allowed in part. French's sentence was within the range properly open to the sentencing judge and remained unchanged. Webster's minimum term was increased from six to eight years, subject to the allowance already directed for time spent on remand.

2. The guidance in R v Millberry [2002] EWCA Crim 2891 provided assistance but was not to be applied mechanically. Webster's offending combined repeated rape, grave breach of trust, and the rape of an exceptionally vulnerable victim. The concurrent offending against a fourteen-year-old girl and the extensive indecent images were further aggravating features. A notional determinate sentence of 24 years, rather than 18 years, was appropriate. French's youth, susceptibility to Webster's influence and limited participation in Webster's additional offending justified a substantially lower starting point of eight years.

3. Under section 144 of the Criminal Justice Act 2003 and the definitive guilty-plea guideline, the judge was entitled to find that both offenders had pleaded guilty at the first reasonable opportunity. A full one-third reduction could not be withheld merely because the photographic evidence made acquittal virtually inconceivable. The special restriction on credit in murder cases did not apply to these non-murder offences.

4. Double jeopardy was a discretionary matter in an Attorney General reference. Its weight depended on the resulting distress and anxiety. It could justify no reduction where an offender remained subject to a lengthy sentence and the increased minimum term did not determine actual release under a discretionary life sentence. No further reduction was appropriate for Webster.

• Court of Appeal (Criminal Division): On consolidated Attorney General references, increased Webster's minimum term from six to eight years and left French's extended sentence undisturbed: [2006] EWCA Crim 1335.
• Crown Court at St Albans: HHJ Baker QC sentenced Webster on 10 January 2006 to life imprisonment with a six-year minimum term, and sentenced French to an extended sentence of five years' custody and a five-year extension period.