KR, R. v

Where an offence falls fairly within a sentencing-guideline category, mitigation may justify movement down to the bottom of the category range but will not ordinarily justify a sentence outside that range. Under section 125 of the Coroners and Justice Act 2009, the guideline must be followed unless doing so would be contrary to the interests of justice.

For a serious sexual assault on a child involving a breach of trust, an isolated incident, previous good character, health difficulties and a mental disorder may be powerful mitigation. They did not justify reducing the sentence below the applicable custody range after a contested trial, particularly where serious harm was caused, the offender denied the offence and a future risk remained.

The offender was convicted at Warwick Crown Court of sexual assault of his 12-year-old granddaughter, contrary to section 7 of the Sexual Offences Act 2003. The assault involved touching her genital area while she was staying overnight in the grandparents’ home.

The sentencing judge placed the offence in category 2A of the applicable guideline, whose starting point was four years’ custody and range was three to seven years. Taking account of powerful personal mitigation, she imposed two years’ imprisonment suspended for two years.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The issue was whether the mitigation could properly take the sentence outside the guideline range and permit suspension.

1. The Attorney General’s reference was allowed. The court granted leave, quashed the suspended sentence of two years’ imprisonment and substituted three years’ immediate imprisonment.

2. The offence was correctly, and fairly, placed in category 2A. It involved category 2 harm because the child’s naked genitalia were touched. It involved level A culpability because the offender, her grandfather, breached the trust inherent in her overnight stay in his home and his position in loco parentis.

3. The applicable starting point was therefore four years’ custody, with a category range of three to seven years. At the guideline’s second stage, the sentencer had to weigh aggravating and mitigating features to adjust the starting point within that range. A move outside the range was possible only where appropriate after that exercise.

4. The court accepted substantial mitigation: the offender’s lack of convictions, positive good character, an isolated and brief incident, medical difficulties, and a mental disorder linked to the offending to some extent. It also accepted that treating the location as aggravating would double count the breach of trust. Those matters justified reducing the sentence to the bottom of the category range.

5. However, the judge was required by section 125 of the Coroners and Justice Act 2009 to follow the guideline unless contrary to the interests of justice. The offender had been convicted after trial, continued to deny the offence, had shown no remorse for it, and presented a continuing, though low, risk. The serious harm to the child was undeniable. Reducing the sentence to two years and suspending it lost sight of the offending’s seriousness and was outside the proper sentencing range.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the suspended sentence unduly lenient, quashed it and substituted three years’ immediate imprisonment.
• Crown Court at Warwick: The offender was convicted on 21 March 2018 of sexual assault of a child under 13 and, on 23 April 2018, sentenced to two years’ imprisonment suspended for two years.