Webb, R v

An indeterminate sentence under Criminal Justice Act 2003 sections 224 and 225 requires a significant risk of serious harm from further specified sexual offending. A significant risk is more than a possibility. It must be noteworthy or of considerable importance. The assessment must consider the circumstances of the offending, the offender’s history, protective measures and the likelihood of further serious harm.

On an Attorney General’s reference, a radical departure from the applicable sentencing guideline must rest on sound mitigation. Low-normal intellectual functioning and unsupported assumptions about the effect of custody did not justify the substantially reduced sentence in this case.

The offender, aged 32, was convicted at Bristol Crown Court of two offences of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. The victim was 15. The offences involved alcohol, digital and penile penetration, repeated requests by the victim to stop, and a subsequent threat intended to prevent disclosure.

His Honour Judge Lambert imposed concurrent sentences of 18 months’ imprisonment and a sexual offences prevention order. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The court had to decide both whether an indeterminate sentence was required by the dangerous-offender provisions and what determinate sentence was appropriate.

1. The Attorney General’s reference was allowed. The concurrent sentences of 18 months’ imprisonment were quashed and replaced with concurrent sentences of three years and six months’ imprisonment. The resulting notification period was indefinite.

2. The court was required to consider for itself whether an indeterminate sentence was required under sections 224 and 225 of the Criminal Justice Act 2003, despite the sentencing judge’s failure expressly to address those provisions. Following the guidance in R v Lang [2005] EWCA Crim 2864, the risk of serious harm had to be significant: more than merely possible, and noteworthy or of considerable amount or importance.

3. There was evidence of predatory conduct, a vulnerable victim, denial of responsibility and a risk of further offending. However, this was the offender’s first sexual offence at age 32. There was no earlier incident despite his association with adolescent girls, and a sexual offences prevention order imposed substantial restrictions. The risk that he would breach that order and commit further specified offences causing serious harm could not properly be categorised as significant. A determinate sentence was therefore appropriate.

4. The original sentence was unduly lenient. The judge’s description of the conduct as consensual gave an over-generous account of events, since the victim repeatedly asked the offender to stop and he threatened her afterwards. The offender’s low-normal intellectual functioning and the asserted exceptional impact of prison did not justify the radical departure from the guideline starting point. The serious aggravating features were broadly balanced by the victim’s age at the upper end of the protected range, the offender’s immaturity, and the stress caused by reopening the sentence.

• Court of Appeal (Criminal Division): On an Attorney General’s reference, the court held the sentence unduly lenient, quashed it and substituted concurrent sentences of three years and six months’ imprisonment.
• Crown Court at Bristol: The offender was convicted of two offences under section 9 of the Sexual Offences Act 2003 on 14 January 2008 and was sentenced on 19 March 2008 to concurrent terms of 18 months’ imprisonment.