Attorney General's Reference No 70 of 2008

On a reference alleging undue leniency, the court must assess the sentence as a whole. Sentencing should not be approached by treating aggravating and mitigating matters as separate compartments. The age of an offender, the age of offences and good character may often carry limited weight in serious sexual cases, but none is invariably of little weight. Their weight depends on the particular circumstances.

A non-custodial sentence for serious historic sexual offending may fall within the proper sentencing range in an exceptional case where the judge has carefully weighed the aggravating features, the long absence of further offending, treatment, health, age and the manageable risk of reoffending.

The Solicitor General applied under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed at Newport Crown Court on 21 October 2008.

The offender, aged 72 and of previous good character, pleaded guilty to one specific count of indecent assault against each of six young female relatives, contrary to section 14 of the Sexual Offences Act 1956. The offences occurred principally in the late 1950s to 1970s, with a final incident in about 1992 or 1993. The pleas did not involve specimen counts, penetration or other additional touching.

The Crown Court imposed a three-year Community Order with a sex-offender programme and probation requirements. The central issue was whether, despite the long passage of time, treatment and absence of later offending, that non-custodial sentence was unduly lenient.

1. The reference was refused. The non-custodial sentence was within the proper range of the sentencing discretion. The court accepted that it might be regarded as merciful, but mercy may properly temper justice.

2. In a reference under section 36 of the Criminal Justice Act 1988, the question is whether the eventual sentence is unduly lenient in the round. A sentencing exercise should not be compartmentalised. In serious sexual cases, the offender’s age, the age of the offending and good character may commonly carry little weight, especially where victims were deliberately kept silent. They nevertheless remain potentially mitigating matters. Their weight depends on the circumstances of the individual offender and offences.

3. The judge had carefully considered the grave aggravating features: abuse of trust, six very young victims and the impact on the victims. He was entitled also to give weight to the absence of penetration, the offender’s age and poor health, the age of all but one offence, the absence of offending after the final incident, admissions, treatment, and the assessment that any risk could be managed in the community. Those exceptional features entitled the judge to conclude that immediate custody was not necessary.

4. The Community Order made under the Criminal Justice Act 2003 was not the correct regime for offences committed before April 2005. The order was accordingly to take effect as a Community Rehabilitation Order under section 41 of the Powers of Criminal Courts (Sentencing) Act 2000, on the same conditions.

• Court of Appeal (Criminal Division): The Solicitor General’s application under section 36 of the Criminal Justice Act 1988 was refused. The court held that the non-custodial sentence was not unduly lenient and corrected the statutory form of the order.
• Crown Court at Newport: On 21 October 2008, the offender received a three-year Community Order with sex-offender programme and probation requirements.