Attorney General's Reference No 21 & 22 Of 2009

For a rape falling within the second category of the definitive sentencing guideline, the presence of several specified features may justify sentencing at the top of, or above, the guideline range. The features must be assessed cumulatively. An element of abduction or detention, joint offending and a sustained attack were all present here.

Stranger rapes involving the forcible removal of a vulnerable victim from the street, anal and vaginal penetration by two offenders, ejaculation and a sustained attack required substantial deterrent sentences. A guilty plea and the unusually difficult conditions in which custody would be served reduced, but did not remove, the need for sentences commensurate with the seriousness of the offences.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the five-year detention-in-a-young-offender-institution sentences imposed at Bolton Crown Court on two offenders treated as aged 18.

Each had pleaded guilty at the plea and case-management hearing to rape of a 17-year-old stranger. The offenders followed her at night, forced her from the street, and jointly subjected her to vaginal and anal rape. The victim sustained physical injuries and serious psychological consequences.

The sentencing judge declined to impose detention for public protection. He selected the second category in the definitive sentencing guideline and imposed five years on each offender. The common issue was whether those sentences were unduly lenient.

1. Leave was granted and the reference succeeded. The five-year sentences were unduly lenient. The court substituted sentences of seven years’ detention in a young offender institution for each offender.

2. The judge’s decision not to impose detention for public protection was not challenged. The sentencing issue was therefore the appropriate determinate sentence.

3. The second category of the definitive sentencing guideline was correctly selected. The court identified three features placing the offences in that category: an element of abduction or detention, more than one offender acting together, and a sustained attack. Their cumulative presence could move the appropriate sentence to the top of, or above, the guideline range. Ejaculation was an additional specified aggravating feature.

4. For offenders aged 18 or over, the applicable starting point after trial was eight years’ custody, with a range of six to 11 years. On the gravity of these joint stranger rapes, the appropriate sentence after trial was 11 years for each offender. The early guilty pleas and the difficult custodial conditions faced by both offenders justified reduction to seven years, but not to five.

5. Under section 28 of the Criminal Justice and Court Services Act 2000, Ali was mandatorily disqualified for life from working with children. The court made that order.

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

• Bolton Crown Court: His Honour Judge Knopf sentenced each offender on 4 February 2009 to five years’ detention in a young offender institution following guilty pleas to rape.