Lawrie, R. v

A sentencing court may depart from a definitive guideline under section 125 of the Criminal Justice Act 2003 only where the interests of justice require it. A substantial departure does not, by itself, make a sentence unduly lenient. The appellate court will respect properly articulated reasons for departure.

However, personal vulnerability, limited intellectual functioning and rehabilitation concerns cannot justify a radical reduction where sustained sexual offending against a young child is grave. The court must assess the totality of repeated offences, aggravating features and the impact on the victim. A restraining order must have a clear statutory basis and proportionate terms.

Following a jury trial at Southampton Crown Court, Antonio Lawrie was convicted of seven counts of sexual assault of a child under 13. One count alleged at least 10 incidents. The offending involved repeated touching of a child aged seven or eight over several months, including incidents under clothing.

The trial judge imposed concurrent terms of two years’ imprisonment, suspended for two years, with supervision and rehabilitation requirements. He also imposed a wide ten-year restraining order. The Solicitor General sought leave to refer the sentence as unduly lenient, contending that the judge had unjustifiably departed from the sentencing guideline by giving excessive weight to the offender’s borderline intellectual functioning, immaturity and vulnerability.

1. The reference was allowed. The court substituted concurrent sentences of three years’ immediate imprisonment on each count and quashed the restraining order.

2. Section 125 of the Criminal Justice Act 2003 permits departure from a definitive guideline only where the interests of justice require it. A departure, even a substantial one, does not automatically render a sentence unduly lenient. An appellate court must give proper respect to a trial judge’s articulated reasons for departing from the guideline.

3. Those principles did not sustain this sentence. The offender’s limited intellectual functioning, immaturity, possible vulnerability in prison and limited rehabilitation prospects were relevant mitigating matters. They did not establish a very significant learning disability, diminish his ability to know right from wrong, or justify treating him as having a child-like mentality. They could not reduce the sentence for the totality of this sustained offending to two years and then permit suspension.

4. The guideline ranges applied to individual offences. The sentencing assessment had materially understated the aggregate seriousness of numerous assaults over several months. The court took account of touching under and over clothing, abuse of trust, grooming, the child’s age, the offending in her home, ejaculation on her dress, and the effect on her. For an offender of normal intellectual aptitude, the overall sentence would have been at least five years and possibly six. Giving maximum proper weight to mitigation and the fact that the offender had left court expecting not to be imprisoned, the minimum proper sentence was three years’ immediate custody.

5. The restraining order was far too wide. Its statutory basis was unclear, whether under the Prevention of Harassment Act or the sexual harm prevention order regime. A ten-year prohibition on all direct or indirect contact with anyone under 16 could not be justified under either basis. The remaining orders, including notification requirements under the Sexual Offences Act 2003, stood.

• Court of Appeal (Criminal Division) — on the Solicitor General’s reference, the court allowed the challenge to sentence, substituted concurrent terms of three years’ immediate imprisonment, and quashed the restraining order: [2018] EWCA Crim 2066.
• Crown Court at Southampton — following convictions on 15 March 2018, His Honour Judge Burrell QC imposed concurrent terms of two years’ imprisonment, suspended for two years, together with supervision, rehabilitation and a restraining order.