Zaheerl, R. v

A sentence for an attempted offence will ordinarily be lower than the sentence for the completed offence. The appropriate reduction depends on the circumstances, including the stage reached and why the offence was not completed.

Where attempted rape is frustrated only by the victim's resistance or movements, and the offender does not voluntarily desist, the attempt may be very close to the completed offence. A substantial reduction for attempt will then fail to reflect the gravity of the offending and may render the sentence unduly lenient.

Following a jury trial at the Crown Court at Wood Green, the offender was convicted of attempted rape of a 16-year-old customer in his mobile telephone repair shop. The Recorder imposed a sentence of three years and nine months' imprisonment.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 on the ground that it was unduly lenient. The central issue was whether the Recorder had made an excessive reduction from the notional sentence for a completed rape because the offence was an attempt.

1. The reference was allowed. The Court quashed the sentence of three years and nine months' imprisonment and substituted five years and six months' imprisonment.
2. The Recorder had been entitled to place the offending in category 3B of the Definitive Guideline for Sexual Offences. Although the case came close to category 2B and involved aggravating features, including an age disparity and an element of false imprisonment, the categorisation itself disclosed no error.
3. The error lay in reducing the Recorder's notional six-year sentence for completed rape to three years and nine months to reflect attempt. An attempted offence will ordinarily attract a lower sentence than its completed counterpart. The extent of the reduction depends on the circumstances, particularly the stage reached and the reason for non-completion.
4. Here the offender attempted penetration with his penis exposed. Completion failed because the victim moved and frustrated him; he did not voluntarily desist. The conduct was not momentary, and repeated attempts had been made. It was therefore very close to the completed offence.
5. The reduction did not adequately reflect the seriousness of the offending, its aggravating features, or the severe impact on the victim. It made the original sentence unduly lenient. The minimum appropriate sentence after trial was five years and six months' imprisonment.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, allowed the challenge to the sentence and substituted five years and six months' imprisonment: [2018] EWCA Crim 1708.
• Crown Court at Wood Green: Following conviction by a jury for attempted rape on 19 April 2018, the Recorder sentenced the offender to three years and nine months' imprisonment on 20 April 2018.