Attorney General's Reference No 80 of 2006

On a reference under section 36 of the Criminal Justice Act 1988, the court must decide whether the sentence imposed, on the material before the sentencing judge, was unduly lenient. It must not substitute its own sentence because later material suggests a different view.

Alleged prior offending which is neither admitted nor the basis of conviction should not aggravate sentence unless the defendant has a fair opportunity to meet it. A higher rape-guideline starting point for an especially vulnerable victim depends on a sustainable assessment of special, rather than ordinary, vulnerability. A guilty plea may be entered at the first reasonable opportunity after essential evidence has been received and legal advice given.

The Attorney General sought leave to refer as unduly lenient a sentence of two and a half years’ imprisonment imposed by a Recorder in the Crown Court following the offender’s guilty plea to rape of his estranged wife.

The Attorney General relied principally on the victim’s vulnerability, alleged prior unwelcome sexual conduct, and the Recorder’s allowance of full credit for the guilty plea. Fresh medical and other evidence was placed before the Court of Appeal. The central issue was whether, on the material before the Recorder, the sentence could properly be characterised as unduly lenient under section 36 of the Criminal Justice Act 1988.

1. Leave was granted, but the sentence was not varied. The sentence might be described as lenient, but it was not unduly lenient.

2. Under section 36 of the Criminal Justice Act 1988, the court’s task was to assess the propriety of the Recorder’s sentence on the material available to him. It was not the court’s function to substitute its own view in light of fresh evidence. The Recorder was entitled to find that the victim was vulnerable but not sufficiently especially vulnerable to require the higher eight-year starting point in Millberry [2003] 2 Cr. App. R (S) 31.

3. The alleged earlier unwelcome sexual activity could be treated as background, but not as an aggravating feature. It had not been admitted and the offender could not be sentenced on the basis that he had previously raped his wife. If the Recorder had contemplated aggravation on that basis, fairness required an opportunity for the defence to meet the allegation.

4. The Recorder was entitled, though not compelled, to conclude that the guilty plea was entered at the first reasonable opportunity. On these unusual facts, that opportunity could follow the production of the 999 recording and the legal advice then obtained. The offender’s lack of admissions or remorse in interview did not justify an additional reduction, although the later plea could demonstrate remorse.

5. The court added, as general guidance, that disputed aggravating factors should ordinarily be identified before sentence so that the defence can prepare and the sentencing court has all relevant material. The overriding objectives in Part I of the Criminal Procedure Rules apply at sentencing.

1. Court of Appeal (Criminal Division) — Granted the Attorney General leave to make a reference under section 36 of the Criminal Justice Act 1988, but held that the sentence was not unduly lenient and did not interfere: [2006] EWCA Crim 2305.

2. Crown Court — The Recorder sentenced the offender, following a guilty plea to rape, to two and a half years’ imprisonment.