Attorney General's Reference No. 73, 75 & 03 of 2010

Sentencing guidelines guide, but do not compel, the imposition of an unjust sentence. The Court of Appeal may amplify or issue sentencing guidance where necessary, and the sentence must remain commensurate with the seriousness disclosed by the facts.

Rape committed after or during a burglary in a home should be treated as among the most serious sexual offending. Even without further aggravation, the starting point will rarely be below 12 years’ imprisonment. Where additional aggravating features are present, it will increase to 15 years or more. Photographing a victim during sexual offending is normally a very serious aggravating feature. A guilty-plea reduction must reflect the strength of the prosecution case.

The Attorney General applied under section 36 of the Criminal Justice Act 1988 to refer three sentences as unduly lenient.

In the first case, a man was convicted after trial of two rapes and two assaults by penetration committed after breaking into a woman’s home at night. In the second, a university student pleaded guilty to rape and robbery after entering another student’s room, binding and photographing her, raping her and stealing her property. In the third, a man pleaded guilty to assault by penetration and robbery after targeting a carer in the home of a vulnerable elderly man, binding and gagging her, sexually assaulting and photographing her, and stealing her property.

The common issues were whether the sentences properly reflected the grave aggravating features of sexual offending during burglary, and what general guidance should govern such cases.

1. Leave was granted in all three references. The court held that each original sentence was unduly lenient, quashed it and substituted increased sentences.

2. The sentencing-guideline structure did not diminish the court’s jurisdiction to explain, amplify or issue guidance. A guideline could not require an unjust sentence. The governing principle remained that sentence must be commensurate with the seriousness of the offence as shown by its facts. An unduly lenient sentence could be as unjust as a manifestly excessive one.

3. Sexual offences committed by a burglar against a vulnerable occupant should be approached as among the most serious offences of their kind. Rape following or during a residential burglary was not properly treated as a single rape by a single offender. Even absent further aggravation, the starting point would rarely be less than 12 years’ imprisonment. Additional features, such as repeated rape or penetration, threats, restraint, weapons, robbery, planning and photographs of the victim, could increase the starting point to 15 years or beyond.

4. The taking of photographs of a victim in these circumstances was an aggravating feature, normally a very serious one in sexual cases. In serious sexual cases of this kind, the court should ordinarily obtain at least a pre-sentence report and should carefully consider whether the dangerous-offender provisions may apply.

5. A guilty plea warranted proper credit, but the reduction had to reflect its timing and the strength of the evidence. In the second case, the evidence was overwhelming and a 20 per cent reduction was sufficient. In the third, the earliest available guilty plea and co-operation justified full credit.

6. The sentence in the first case was increased to 15 years’ imprisonment. The sentence in the second case was increased to 15 years’ imprisonment. In the third case, sentences of 14½ years’ imprisonment for assault by penetration and eight years’ imprisonment for robbery were substituted, to run concurrently. Existing notification and Sexual Offences Prevention Orders were left undisturbed.

• Court of Appeal (Criminal Division) Granted leave under section 36 of the Criminal Justice Act 1988, held each sentence unduly lenient, and substituted increased sentences.

• Crown Court at Wood Green On 29 October 2010, imposed eight years’ imprisonment for rape, with concurrent four-year terms for assault by penetration, after jury convictions.

• Crown Court at Leicester On 1 November 2010, imposed concurrent sentences of eight years for rape, four years for robbery and one year for possession of a bladed article, following guilty pleas.

• Crown Court at Truro On 22 December 2010, imposed six years’ imprisonment with a six-year extension for assault by penetration, and a concurrent sentence of three and a half years for robbery, following guilty pleas.