Attorney-Generals Reference No 71 Of 2009

Sentencing guidelines should ordinarily be followed. A judge who departs from an applicable guideline should identify it and give good and cogent reasons for doing so. This promotes consistency and disciplines the sentencing decision.

In sexual-offence sentencing, repeated assaults on one child are an aggravating feature. They are not mitigated because there was only one complainant. Good character, personal consequences and a low risk of reoffending may mitigate sentence, but they did not justify a substantial departure from the applicable custodial guideline in this case.

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

The offender had been convicted after trial of five sexual assaults contrary to section 3 of the Sexual Offences Act 2003, committed against the young daughter of his former partner. The trial judge imposed concurrent sentences of 12 months’ imprisonment, suspended for two years, with supervision and programme requirements.

The central issue was whether the judge had unjustifiably departed from the applicable definitive guideline for sexual assault of a child under 13.

1. The court granted leave and held that the concurrent suspended sentences were unduly lenient. They were replaced by concurrent sentences of 15 months’ immediate imprisonment.

2. The applicable definitive guideline identified a starting point of two years’ custody and a range of one to four years for a first-time offender committing sexual assault of a child under 13. It did not itself reflect the aggravating breach of trust present in the case.

3. A sentencing judge should refer to the applicable guideline and explain any departure from it. The requirement gives proper reasons to the parties and maintains the consistency for which guidelines are designed. In sexual-offence cases, departure requires good and cogent reasons.

4. The trial judge correctly recognised the child’s vulnerability, the destruction of the family and the gross breach of trust. However, she wrongly treated the existence of only one complainant as mitigating. The five repeated assaults on the same child were aggravating under the guideline. Describing the conduct as drunken groping also understated its gravity.

5. The offender’s positive good character, the severe personal consequences of imprisonment and the low assessed risk of further offending were mitigating. They supplied no basis for departing from the guideline. The court assessed two years’ imprisonment as the proper sentence, reduced it to 15 months to reflect the impact of the Attorney General’s reference, and held that suspension was unjustified. The offender was ordered to surrender at Weston-super-Mare police station by 10.30 am on the following Wednesday.

• Court of Appeal (Criminal Division): In an Attorney General’s reference, the court granted leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, and substituted concurrent immediate sentences of 15 months’ imprisonment: [2009] EWCA Crim 2857.
• Bristol Crown Court: Her Honour Judge Hagen convicted the offender after trial of five sexual assaults and imposed concurrent sentences of 12 months’ imprisonment, suspended for two years, with supervision and programme requirements.