Attorney General's Reference No. 5 OF 2006

A sentence for repeated rape and indecent assault of a very young child may be unduly lenient where it fails to reflect the gravity of the abuse, the offender’s position of trust, the victim’s distress and its lasting impact. The offender’s youth at the time, guilty pleas, previous good character, rehabilitation and low assessed risk remain material mitigation, but do not necessarily displace the need for a substantial custodial sentence.

On an Attorney-General reference, the Court of Appeal must allow for the double-jeopardy consequence of resentencing. That allowance may justify a sentence below the term that should originally have been imposed.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a community rehabilitation order imposed at Taunton Crown Court.

The offender had pleaded guilty to three counts of rape and three of indecent assault against his niece. The offences were committed when he was 15 and the child was under five. The abuse involved repeated anal and oral penetration while he was entrusted to look after her.

The issue was whether the community order adequately reflected the seriousness of the offending, notwithstanding the offender’s age at the time, subsequent progress, treatment engagement, employment, guilty pleas and low assessed risk of reoffending.

1. The court granted leave and held that the community rehabilitation order was unduly lenient. The victim’s very young age, the gravity and repetition of the sexual abuse, the offender’s role while babysitting her, her visible distress, and the continuing traumatic consequences required substantial custody.

2. The offender’s youth at the time of offending, guilty pleas, good character, subsequent improvement, employment, relationship, engagement with the Sex Offender Treatment Programme and low assessed risk of reoffending were important mitigating matters. They did not, however, outweigh the seriousness of the offences or the interests of the victim and the public.

3. The court considered that the Crown Court should have imposed three years’ imprisonment. It reduced the substituted term to two years’ imprisonment on each offence to reflect double jeopardy arising from resentencing after the offender had been given, and complied with, a community sentence.

4. The offender was ordered to surrender to custody by noon on the following day, subject to submissions to the contrary. Credit was to be given for time already spent in custody.

• Court of Appeal (Criminal Division): granted leave under section 36 of the Criminal Justice Act 1988, found the original sentence unduly lenient, and substituted two years’ imprisonment on each offence.
• Taunton Crown Court: imposed a three-year community rehabilitation order with a condition requiring attendance at a Sex Offender’s Programme.