Attorney General v Pollard & Anor

In sentencing for sexual activity with a child, a significant disparity in age may place the offence within culpability Category 1A under the Sexual Offences Guideline. A child’s apparent willingness, initiation of sexual activity, or behaviour said to encourage it does not mitigate the offending. It may aggravate it because the child requires protection.

Personal mitigation is specific to the offender who establishes it. A co-offender cannot claim a similar sentence merely because another offender receives a reduction for stronger mitigation. Where the seriousness of the offending requires immediate custody, a suspended sentence does not provide appropriate punishment.

The Attorney General referred, under section 36 of the Criminal Justice Act 1988, sentences imposed on Lee Pollard and Marc Allen at the Crown Court at Exeter as unduly lenient.

Following a joint jury trial, Pollard was convicted of one count and Allen of two counts of sexual activity with a child. The victims were aged 14 and the offenders were aged 24. The offending involved penile penetration after alcohol and amphetamine had been supplied and consumed. The sentencing judge imposed 15 months’ imprisonment, suspended for two years, on each offender.

The central issues were the proper guideline category, the significance of the victims’ purported consent and conduct, the effect of individual mitigation, and whether immediate custody was required.

1. The Attorney General’s reference was allowed. The suspended sentences were unduly lenient. The court quashed them and substituted immediate sentences of two years and nine months’ imprisonment for Pollard, and three years and six months’ imprisonment for Allen.
2. The offences fell within culpability Category 1A of the Sexual Offences Guideline. The ten-year age difference between the 24-year-old offenders and the 14-year-old victims was a significant disparity in age. The court accepted that, after aggravating and mitigating features were assessed, sentences below the Category 1A range could exceptionally be justified. They nevertheless had to be immediate custodial sentences.
3. The sentencing judge’s description of the activity as consensual, and his view that the victims bore some responsibility, were misplaced. Applying Attorney-General’s Reference (No. 53 of 2013) (Wilson) [2014] 2 Cr. App. R. (S) 1, the court held that an underage person’s encouragement of sexual activity does not reduce punishment. Such conduct shows a need for protection, and an offender’s taking advantage of it aggravates the offence.
4. The substantial personal mitigation arising from Pollard’s serious injuries could properly reduce his sentence. It did not justify a corresponding reduction for Allen. Following Attorney-General’s References Nos. 62, 63 and 64 of 1995 (O’Halloran & ors.) [1996] 2 Cr. App. R (S) 223 and Attorney-General’s Reference (No. 73 of 1999) (Charles) [2000] 2 Cr. App. R. (S) 209, different sentences reflecting different mitigation are justice, not disparity.
5. In light of the seriousness, the age disparity, the victims’ vulnerability and the other aggravating features, suspension was inappropriate. Immediate imprisonment was necessary despite Pollard’s difficult personal circumstances.

• Court of Appeal (Criminal Division). On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the sentences unduly lenient, quashed them and imposed immediate custodial sentences: [2018] EWCA Crim 439.
• Crown Court at Exeter. Following a joint jury trial, the respondents were convicted of sexual activity with a child and, on 22 December 2017, each received 15 months’ imprisonment suspended for two years.