Balogh, R v

Section 125(7) of the Coroners and Justice Act 2009 preserves sentencing powers designed to secure treatment for a mentally disordered offender. It does not create a general discretion to disregard sentencing guidelines because an offender has a mental disorder. The court must first determine the custodial term justified by the seriousness of the offence. It must not reduce that term solely to make a suspended sentence available. A suspended sentence for rape will be rare, although there is no statutory threshold of exceptionality. On an Attorney General reference, the court may find a sentence unduly lenient but decline to alter it where post-sentence progress and the public interest make disturbance inappropriate.

The offender pleaded guilty to rape contrary to section 1 of the Sexual Offences Act 2003. Following a Newton hearing, the Recorder found that he had continued sexual intercourse after the complainant made clear that she did not consent. The Recorder imposed two years’ imprisonment, suspended for two years with supervision, having treated the offender’s mental disorders, remorse and self-reporting as exceptional mitigation.

On an Attorney General reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal considered whether the sentence was unduly lenient. The central issues were the scope of section 125(7) of the Coroners and Justice Act 2009, the proper approach to suspension, and whether the sentence should now be disturbed.

1. Disposition. The court granted the Attorney General leave and held that the suspended sentence was, when imposed, unduly lenient. It nevertheless took no action because it was not then in the public interest to disturb the order.
2. Sentencing guidelines. Section 125(1) of the Coroners and Justice Act 2009 imposes a mandatory duty to follow relevant guidelines unless doing so would be contrary to the interests of justice. Section 125(7) addresses a statutory gap: it preserves the court’s existing powers to impose a sentence designed to secure treatment for a mentally disordered offender. It does not permit guidelines simply to be abandoned in every case involving mental disorder. As no treatment order, whether residential or community-based, was contemplated in this case, the guideline applied subject to the interests-of-justice exception.
3. Appropriate term and suspension. The offender’s disorder contributed to the offence, although he retained primary responsibility. His immediate remorse, self-reporting and guilty plea were substantial mitigation. The court considered that the interests of justice could justify a sentence outside the guideline offence range and that a two-year term was not itself unduly lenient. The Recorder, however, appears to have reduced the appropriate term from three years to two solely so that it could be suspended. That was wrong. The appropriate length must be fixed first; the factors relevant to suspension must then be considered separately.
4. Later events. There is no statutory standard of exceptionality for suspension. It depends on a judgment balancing the offence’s seriousness with the offender’s antecedents and personal circumstances, although suspension for rape is almost unheard of. At the date of sentence the grounds for suspension were doubtful. By the reference hearing, however, the offender had fully engaged with intensive supervision and treatment planning. Immediate custody would likely cause serious mental deterioration and disrupt arrangements that reduced risk. The court therefore left the suspended sentence undisturbed.

• Court of Appeal (Criminal Division). On an Attorney General reference, the court in [2015] EWCA Crim 44 granted leave, held that the suspended sentence had been unduly lenient when imposed, but took no action.
• Portsmouth Crown Court. On 31 October 2014, following a Newton hearing before Mr Recorder Towler, the offender received two years’ imprisonment suspended for two years, with a supervision requirement, for rape.