Attorney General's Reference No 367 of 2014

A sentencing court must first determine the sentence warranted by the offending. Employment or service consequences may be relevant, but they must not drive the sentence.

On an Attorney General reference, a sentence may be held unduly lenient without being increased. The court retains a discretion to take account of a mental disorder linked to the offending and the double-jeopardy consequences of resentencing, particularly where release is imminent.

The offender, a Royal Navy member, was convicted at a Court Martial of two assaults by penetration against another servicewoman in service accommodation. She received consecutive detention terms totalling nine months.

The Solicitor-General referred the sentence under section 273 of the Armed Forces Act 2003, contending that it was unduly lenient. After an adjournment, the court received evidence that the Navy had decided to terminate the offender’s service and psychiatric evidence of serious mental ill-health. The central issue was whether the sentence should be increased.

1. Leave was granted, but the reference failed. The Court of Appeal held that the nine-month detention sentence was unduly lenient. It nevertheless declined, exceptionally, to exercise its discretion to increase it.

2. The Court Martial had approached sentence wrongly if it first asked whether the offender could remain in naval service. The proper first question was the sentence warranted by the offending. Employment consequences could follow from that sentence and might matter greatly in a service setting, but they could not determine the sentence.

3. The assaults were serious and deliberate. The victim had twice rejected the offender’s advances before allowing her into the bed because she regarded her as a friend and did not feel threatened. The court rejected any suggestion that the victim bore responsibility because both women had been drinking. There were two escalating assaults, not drunken fumbling, and the offender persisted after being told to stop and leave.

4. The court endorsed the guidance that dismissal for serious sexual offending in a service context will be almost inevitable save in exceptional cases. Sexual misconduct may be especially serious in the services because it can undermine safety and unit cohesion. However, it declined to order dismissal, leaving the administrative discharge decision to the Navy and respecting the Court Martial’s position.

5. Further psychiatric evidence was admissible because it could assist the offender in the court’s discretionary assessment, although adverse material unavailable to the Court Martial would not be used against her. The offender’s mental disorder was linked to the offending and was capable of mitigation, consistently with R v Hall [2013] 2 Cr App R(S) 68. Her serious ongoing mental ill-health, suicide risk, imminent release date and the double-jeopardy anxiety of resentencing made an increased sentence unnecessary.

• Court of Appeal (Criminal Division): by [2015] EWCA Crim 257, granted leave on the Solicitor-General’s reference, held the sentence unduly lenient, but declined to increase it.

• Court Martial: convicted the offender of two assaults by penetration on 4 September 2014 and, on 9 October 2014, imposed consecutive detention terms totalling nine months.