Attorney General's Reference No 59 of 2006

On an Attorney General reference for undue leniency, the court must distinguish permissible mitigation and clemency from an unjustified reduction or suspension of custody. A sentence of 51 weeks’ imprisonment, suspended for two years, was unduly lenient for repeated sexual activity with a child involving a breach of trust. Although a two-year sentence could properly reflect the offender’s mitigation, there was no justification for reducing it further or for suspending it. A victim impact statement obtained after sentence cannot determine whether the original sentence was unduly lenient, though it may form part of the background when the court determines the overall sentence. Where immediate custody replaces an existing non-custodial sentence, the substituted term must allow appropriate mitigation for double jeopardy.

The offender pleaded guilty to three counts of sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003. The offences involved digital penetration on one occasion and protected sexual intercourse on two occasions with a 14-year-old neighbour whom the offender had known closely.

At Chichester Crown Court, the judge imposed concurrent terms of 51 weeks’ imprisonment, each suspended for two years. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issues were whether the term and its suspension properly reflected the gravity of the offences, and what substituted sentence should follow if the reference succeeded.

1. The court granted leave on the Attorney General’s reference, held that the sentence was unduly lenient, and substituted 18 months’ immediate imprisonment on each count, to run concurrently.

2. The sentencing judge had correctly identified a starting point of two years’ imprisonment. Having regard to the guilty pleas, the basis of plea, the offender’s previous good character, and the compelling personal mitigation, a two-year term would not itself have been unduly lenient.

3. However, there was no justification for the further reduction to 51 weeks. The repeated offences against a child and the breach of trust required a custodial sentence. The circumstances did not exceptionally justify suspending any term of imprisonment.

4. The victim impact statement, prepared after the original sentence, could not be used to decide whether that sentence was unduly lenient. It could nevertheless form part of the background against which the overall sentence was assessed.

5. Because the offender had already received a non-custodial sentence, the court reduced the immediate custodial term appropriately for double jeopardy. It directed him to surrender at Worthing Police Station by midday on the following day, when the substituted sentence would begin.

• Court of Appeal (Criminal Division): On an Attorney General reference under section 36 of the Criminal Justice Act 1988, the court granted leave, found the suspended sentence unduly lenient, and substituted concurrent terms of 18 months’ immediate imprisonment.
• Chichester Crown Court: On 22 May 2006, His Honour Judge Thorpe imposed concurrent sentences of 51 weeks’ imprisonment, each suspended for two years.