Attorney-General's Reference No 32 Of 2016

A sentence for a historic sexual offence must be imposed under current sentencing legislation and by measured reference to current definitive guidelines, but it cannot exceed the maximum available when the offence was committed. The court must assess the established facts, seriousness, harm and culpability. Elapsed time, the offender’s age and maturity at the time, and subsequent good character may materially affect sentence.

Aggravating features must have a sound evidential basis. Where the applicable suspension regime is section 118(4) of the Powers of Criminal Courts (Sentencing) Act 2000, those matters may also be relevant to whether exceptional circumstances justify suspension. There is no absolute rule requiring immediate custody for every historic child sexual offence.

The offender was convicted after trial of two historic offences of indecent assault contrary to section 15(1) of the Sexual Offences Act 1956. He was aged 11 when he assaulted X, then aged 14 when he assaulted Y. The complainants were aged three and five respectively.

The sentencing judge imposed concurrent terms of two years’ imprisonment, suspended for two years. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentences as unduly lenient. The issues were whether the terms should have been longer or consecutive, and whether exceptional circumstances permitted suspension under the applicable historic sentencing regime.

1. Leave to refer was refused. The concurrent two-year suspended sentences were not unduly lenient. Although the sentencing judge had been incorrectly told that the historic maximum was five rather than ten years, the court found no basis to interfere.
2. The court applied the historic-offence guidance in R v Hall and others [2012] 1 WLR 1416. Sentence had to be imposed under current legislation and by measured reference to the current definitive guideline, while remaining limited by the maximum available when the offences were committed. It was impermissible to reconstruct the sentence likely to have been imposed at the time of offending.
3. The proposed aggravating features of grooming, deliberate isolation, X’s presence during the offence against Y, and X’s recruitment of Y lacked an adequate evidential basis or were inapt on the facts. The correct modern guideline categorisation for both offences was category 2B. The offender’s extreme youth and immaturity at the time substantially reduced culpability, and the available mitigation was considerable. The sentence for X was within the appropriate range. A consecutive sentence for Y would also have required an adjustment for totality.
4. Section 118(4) of the Powers of Criminal Courts (Sentencing) Act 2000 required exceptional circumstances before a custodial term could be suspended. Attorney General's Reference No 61 of 2014 [2015] Cr App R (S) 25 did not establish that elapsed time could never be exceptional. The passage of time, the offender’s age when offending, and an unblemished subsequent life could be relevant to that assessment. Immediate custody was not compulsory in every case of this kind.
5. The judge had consciously weighed the seriousness, victim impact, mitigation and guidelines. His measured decision to suspend the terms therefore stood.

• Court of Appeal (Criminal Division) On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court refused leave to challenge the sentences as unduly lenient.
• Sentencing court (not otherwise identified) Following conviction after trial, the offender received concurrent terms of two years’ imprisonment, suspended for two years, for two historic indecent assaults.