Attorney Generals Reference No. 67 of 2009

On a reference alleging undue leniency, the Court of Appeal will not interfere merely because a longer custodial sentence could properly have been imposed. It must assess the sentencing decision as a whole, including the statutory maximum, applicable guideline range, aggravating features and personal mitigation.

In sentencing an offender under 18 for prolonged sexual offending against a child family member, the established sexual activity may properly be assessed as a totality. The rape count need not mechanically determine a substantially higher sentence where the circumstances of all offending, including its nature and chronology, justify a different overall assessment.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed in the Crown Court at Birmingham.

The offender, then aged 18, had pleaded guilty at the first opportunity to rape his younger sister and to offences of sexual activity with a child family member. The offending occurred over about three years, when he was aged 14 to 16 and the victim was aged 11 to 13. The sentencing judge imposed concurrent terms of 12 months’ detention in a young offender institution.

The central issue was whether, despite serious and persistent familial sexual abuse, that sentence was unduly lenient and should be increased.

1. Leave was granted, but the Attorney General’s application was refused. The sentence was one which could have been longer without any realistic prospect of a successful appeal by the offender. That fact did not establish undue leniency or require appellate intervention.

2. The court accepted that a custodial sentence was inevitable and appropriate. The victim had been subjected to systematic and persistent sexual abuse while an innocent pre-pubertal child. The offending involved a serious breach of familial trust and included penetration.

3. The sentencing assessment nevertheless required evaluation of the sexual activity as a totality. The court endorsed the judge’s approach of not treating the rape count as necessarily much more serious than the counts involving digital penetration. The rape involved minimal penetration, occurred early in the chronology, and there was no later sexual intercourse. The court noted the helpful guidance in R v Thomas [2006] 1 Cr App R(S) 101 for interfamilial sexual offending.

4. The court had regard to the guideline for an offender under 18, the five-year maximum sentence, and the stated detention-and-training range of six to 24 months. None of the guideline’s specified aggravating factors, such as intimidation, coercion, threats, or misuse of substances, was present.

5. Substantial mitigation was available. The offender had been immature when the offending began, had brought it to an end voluntarily, had made immediate and frank admissions, pleaded guilty at the first opportunity, had no previous convictions, and was a vulnerable and emotionally damaged young person. In the circumstances, the experienced sentencing judge’s reduction from a three-year starting point to 12 months was not a decision with which the court should interfere.

• Court of Appeal (Criminal Division): Leave was granted under section 36 of the Criminal Justice Act 1988, but the Attorney General’s reference was refused: [2009] EWCA Crim 2221.
• Crown Court at Birmingham: On 13 July 2009, His Honour Judge Juckes QC imposed concurrent terms of 12 months’ detention in a young offender institution.