Laxton, R v

In an Attorney General’s reference for an unduly lenient sentence, serious intellectual disability, vulnerability and a long period without further offending may substantially mitigate sentence. They do not, however, preclude immediate custody where sustained sexual offending against very young children has caused profound and lifelong harm. A community order is unduly lenient where it gives insufficient weight to the gravity, duration and consequences of such offending.

The offender pleaded guilty at Southampton Crown Court to six sample counts of indecent assault under section 14(1) of the Sexual Offences Act 1956. The offences comprised repeated sexual assaults upon his cousin and niece when each was aged between seven and 12.

The sentencing judge imposed a three-year community order, an indefinite sexual offences prevention order and registration requirements. The offender had substantial intellectual impairment from birth, later blindness, no previous convictions and no further offending since 1994.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the offender’s disabilities could justify a non-custodial sentence despite the gravity and enduring impact of the offences.

1. The court granted leave, held that the community order was unduly lenient, quashed it and substituted concurrent sentences of three years’ imprisonment on each count.

2. The offending involved numerous serious sexual assaults over lengthy periods upon two young girls by a trusted family babysitter. The court gave particular weight to the girls’ young ages, the breach of trust, the repeated nature of the conduct and the profound, lifelong damage described in their victim impact statements.

3. The offender’s intellectual impairment, blindness, vulnerability, lack of previous convictions and absence of further offending since 1994 were substantial mitigating considerations. The court did not minimise those matters. It nevertheless found that he knew his conduct was wrong and was not so impaired that he failed to understand its unacceptability.

4. The historical sentencing maxima constrained both the sentencing judge and the Court of Appeal, notwithstanding that comparable offending would now attract materially greater sentencing powers. Those constraints did not make a non-custodial sentence appropriate.

5. The sentencing judge had failed to give sufficient weight to the seriousness, extent and duration of the offences and their impact on both victims. In those circumstances, immediate custody was inevitable. The offender was directed to surrender at Southampton Central Police Station by 4 pm that day.

• Court of Appeal (Criminal Division): Granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, and substituted concurrent terms of three years’ imprisonment.

• Crown Court at Southampton: On 18 June 2010, imposed a three-year community order after guilty pleas to six counts of indecent assault.