Tiffany, Attorney-General's Reference No 52 of 2009

For a repeated campaign of rape against the same victim, the applicable sentencing starting point is 15 years and upwards. The court must then assess aggravating and mitigating features. Extreme youth and vulnerability, a grave breach of foster-carer trust, grooming, degradation, coercion and serious harm may justify a sentence above that starting point. Previous good character should be recognised but will not usually justify a substantial reduction.

Where an Attorney-General reference establishes substantial undue leniency, the court may substitute higher concurrent sentences. Double jeopardy requires a discount, but its effect may be limited where the substituted sentences are already long.

The offender was convicted after trial at Leeds Crown Court of 12 sexual offences against C, a child placed with him and his wife as foster carers. The offences, committed when C was aged between nine and 11, included repeated vaginal, oral and anal rape, sexual assaults, and showing her sexual material. The Crown Court imposed concurrent sentences, producing a total of 11 years’ imprisonment.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988. Although dangerousness under the Criminal Justice Act 2003 had been raised below, the Court of Appeal confined the reference to whether the determinate sentence was unduly lenient.

1. The reference was allowed. The concurrent rape sentences were quashed and increased. The 11-year rape terms were replaced with concurrent terms of 16 years’ imprisonment, and the six-year terms for oral rape with concurrent terms of 12 years’ imprisonment. The sentences for sexual assault and watching a sexual act were left undisturbed.

2. The court held that this was plainly a campaign of rape within the 15-years-and-upwards starting point in Millberry and others [2003] 2 Cr App R (S) 31. It concerned repeated rape of the same victim over an extended period. The sentence had to be adjusted for aggravating and mitigating features.

3. The aggravation was exceptionally serious. C was extremely young, emotionally vulnerable and known by the offender to be vulnerable. He had gravely abused the trust inherent in his role as a professional foster carer. The offending involved grooming, degrading conduct, coercion and threats, and had profound consequences for an already damaged child and her family. Those matters placed the case above the 15-year starting point.

4. The offender’s age and previous good character did not outweigh the aggravation. Consistently with Millberry and others [2003] 2 Cr App R (S) 31, good character could not warrant a substantial reduction. The original 11-year total was therefore unduly lenient by a substantial measure.

5. The court assessed 17 years as the appropriate sentence before allowing for double jeopardy. It made a one-year reduction because the matter came by Attorney-General reference, while treating that consideration as limited in the context of long sentences, by reference to Attorney General's Reference No 82b of 2000 (Vinnicombe) [2001] 2 Cr App R (S) 60. Ancillary orders remained in force and time on remand was to continue to count.

• Court of Appeal (Criminal Division): On the Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, the court held that the rape sentences were unduly lenient, quashed them and substituted higher concurrent sentences.
• Leeds Crown Court: On 14 May 2009, the offender was convicted after trial of 12 sexual offences and received concurrent sentences producing a total of 11 years’ imprisonment. No citation is stated in the judgment.