Attorney General Reference No 7 of 2011

When sentencing historic sexual offences, a court may use the contemporary assessment of their gravity in the applicable Definitive Guidelines. It must, however, reduce the sentence to reflect the lower maximum penalty in force when the offences were committed.

A sentence for a sustained course of sexual abuse must reflect the whole criminality, including abuse of trust, threats, physical harm and psychological harm. The court must stand back after analysing individual offences and ensure that the total sentence is proportionate. On an Attorney General’s reference, the increased impact of an appellate uplift may justify moderation, including by making an otherwise consecutive sentence concurrent.

The offender committed a sustained course of sexual offences against his niece between 1996 and 2003. He later committed a sexual assault against another girl and possessed substantial numbers of indecent images of children.

At Oxford Crown Court, the judge imposed an overall sentence of three years and four months’ imprisonment, together with a Sexual Offences Prevention Order. The sentences for the offences against the niece had been assessed by reference to contemporary guidance under the Sexual Offences Act 2003, with a reduction to reflect the maximum penalties under the Sexual Offences Act 1956.

On a reference under section 36 of the Criminal Justice Act 1988, the question was whether the individual and total sentences were unduly lenient and how totality should be applied across the separate offending.

1. The reference was allowed and the total sentence was increased to six years’ imprisonment. The sentence for counts 3, 4 and 5, involving digital penetration and conduct now described as oral rape, was plainly too lenient. It was increased from three years to five years concurrently. The one-year sentence for the separate offence against the second girl was properly made consecutive.

2. The judge had correctly used the contemporary approach to the gravity of sexual offending reflected in the Definitive Guidelines. As explained in R v Mansfield [2009] EWCA Crim 2158, that approach may be used for offences predating the Sexual Offences Act 2003, provided the sentence is reduced to reflect the lower maximum penalty applicable when they were committed. The applicable guideline is identified by the facts disclosed, rather than solely by the modern name of the offence.

3. The original concurrent sentences for the prolonged abuse of the niece failed to reflect its full seriousness. Material aggravating features included the uncle-and-niece relationship of trust, threats which secured the victim’s silence, the physical harm caused by penetration, the gravity of the sexual acts, and the victim’s psychological injury.

4. The four-month sentences for the indecent images were not increased. Although that term was probably the minimum appropriate for the volume and levels of images, it was made concurrent. The court took account of the additional impact of increasing a sentence on a reference, loosely described as double jeopardy.

5. The case emphasises that, after a systematic analysis of each offence, the sentencing judge must stand back and ask whether the total sentence properly reflects the total criminality. It did not do so here.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the court found the original sentence unduly lenient and varied it to a total of six years’ imprisonment.

• Oxford Crown Court: His Honour Judge Compston imposed a total sentence of three years and four months’ imprisonment for the sexual offences and indecent-image offences.