Attorney General's Reference No. 112 OF 2005

For a reference under section 36 of the Criminal Justice Act 1988, a sentence that is merely lenient is not enough. The Court of Appeal may intervene where the total sentence fails to reflect the serious aggravating features of the offending and is unduly lenient.

In sentencing multiple indecent assaults on children, material aggravating features include abuse of trust, the number and ages of the victims, persistent and grave sexual conduct, administering alcohol to facilitate an assault, the effect on victims, and the absence of guilty pleas. Comparable sentencing decisions may provide guidance, but the sentence must reflect the circumstances as a whole. When increasing a sentence on an Attorney General’s reference, the court should allow for the offender’s double jeopardy in having already been sentenced.

The Attorney General applied under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed at Exeter Crown Court on 21 October 2005.

After trial, the offender had been convicted of four indecent assaults on three boys aged 11, 11 and 14. The assaults involved masturbation, twice to ejaculation. They occurred in circumstances of trust, including sleepovers and scouting connections. In one case the offender supplied alcohol before the assault. The Crown Court imposed concurrent terms of 30 months’ imprisonment, with ancillary sex-offender orders.

The central issue was whether that total sentence was unduly lenient and, if so, the sentence that should replace it.

1. The Attorney General’s reference was allowed. The court granted leave, held that the concurrent sentences totalling 30 months’ imprisonment were unduly lenient, quashed them, and substituted concurrent terms of four years’ imprisonment: a total of four years.

2. The court stressed that indecent assaults on boys vary substantially. Earlier sentencing decisions could nevertheless provide guidance. The present offending was materially aggravated by the offender’s breach of trust, three young victims, repeated conduct, masturbation to ejaculation in two instances, and alcohol given to one victim to secure his sleepy compliance.

3. The court also gave weight to the adverse effect on the victims, as shown by impact statements unavailable to the sentencing judge. The offender’s old conviction was given little weight because more than 20 years had passed. The absence of guilty pleas did not aggravate the sentence, but meant that no mitigation was available and that all three victims had undergone the trial process.

4. A total of five years’ imprisonment would have been appropriate at first instance. The court reduced that figure to four years to reflect double jeopardy: the offender had already been sentenced and had for a time believed that his sentence was 30 months.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the Crown Court sentence unduly lenient and substituted concurrent four-year terms.

• Crown Court at Exeter: On 21 October 2005, following conviction after trial on four counts of indecent assault, the offender received concurrent terms of 30 months’ imprisonment.