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A sentence may be plainly lenient without being unduly lenient for the purposes of section 36 of the Criminal Justice Act 1988. Sentencing for sexual activity with a child requires an evaluative assessment of the victims, the offender and the public interest in marking disapproval. Guideline starting points and ranges allow flexibility according to the aggravating and mitigating features of the individual case. Young and sexually experienced complainants remain entitled to the protection of the courts. An appellate court may nevertheless conclude that concurrent suspended custodial terms, although lenient, do not justify intervention when the overall circumstances explain the sentencing judge’s approach.

The Attorney General referred the offender’s sentence under section 36 of the Criminal Justice Act 1988, alleging that it was unduly lenient.

The offender, then aged 20, had pleaded guilty to two counts of sexual activity with a child. The Recorder of Middlesborough, sitting at Teesside Crown Court, imposed concurrent terms of six months’ imprisonment, suspended for two years, with supervision.

One complainant was 15 and initially reluctant to have intercourse. The other was 13, had been drinking, and was a willing participant in intercourse previously discussed with the offender. The sentencing exercise involved substantial aggravating features, but also the offender’s youth, early guilty pleas, lack of sexual convictions and aspects of the complainants’ conduct. The central issue was whether the suspended sentences were unduly lenient.

Reference dismissed. The court granted leave under section 36 of the Criminal Justice Act 1988, but held that the sentences, although undoubtedly lenient, were not unduly lenient and should not be increased.

1. Sentencing for these offences required an assessment of the complainants and the effect of the conduct, the offender’s circumstances, and the public interest in marking disapproval. It was a difficult evaluative exercise rather than one in which a precise equilibrium could always be reached.

2. The Recorder should have been referred to, or should have addressed, the Sentencing Guidelines Council material. He also gave no reasons for suspending the custodial terms. The appellate court could nevertheless assess whether the approach was justified. The flexibility described in R v Frew [2009] 1 Cr App R(S) 91 remained important: starting points and ranges must be applied in the light of the individual aggravating and mitigating features.

3. Both complainants were young and entitled to the protection of the courts, notwithstanding that they were sexually experienced and their conduct could be unattractive. The offending involved two victims, premeditation, full intercourse, the younger complainant’s age and intoxication, breach of a community order, and payment of money for silence. Against that were the offender’s youth, lack of previous sexual offending, early pleas, contraception, and the particular circumstances of the relationships. This was not grooming or predatory conduct towards inexperienced children.

4. On the whole, those matters explained why the Recorder could suspend the terms. A Sexual Offences Prevention Order was also unnecessary on these facts. The court additionally expressed concern about a police officer attending a Probation Service interview used to prepare a pre-sentence report, and indicated that any regular practice required justification.

• Court of Appeal (Criminal Division) In the Attorney General’s Reference, [2009] EWCA Crim 2437, the court granted leave but dismissed the reference because the suspended sentences were lenient but not unduly lenient.
• Crown Court at Teesside On 28 July 2009, the Recorder of Middlesborough imposed concurrent six-month custodial terms, suspended for two years, with supervision for two offences of sexual activity with a child.