Haycock, R. v

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the question is whether the sentence was unduly lenient, not whether the Court of Appeal would have imposed a different sentence. A sentence is unduly lenient only where it falls outside the range reasonably open to a judge who has considered all relevant factors.

In an exceptional case involving a serious sexual offence, age, immaturity, mental disorder, learning disability and the likely effect of custody may justify a community sentence where that better serves rehabilitation and public protection. However, the sentence must contain a sufficient punitive element. A fine may be inadequate where a compensation order serves only a compensatory purpose.

The respondent was convicted at Worcester Crown Court of raping a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003. He was 17 years and eight months old at the time of the offence and had significant intellectual, developmental and neurological impairments. The Crown Court imposed a three-year community order with a rehabilitation activity requirement, a fine and compensation.

The Attorney General sought permission to refer the sentence under section 36 of the Criminal Justice Act 1988, arguing that the offence required custody and that the offender’s culpability had been placed in the wrong guideline category. The Court of Appeal upheld the judge’s assessment that the case fell within Category 3B and that a community sentence could properly be imposed, but considered the punitive element insufficient because no curfew requirement had been imposed. The central issue was whether the sentence was unduly lenient.

1. Permission and scope of review. Permission to refer the sentence was granted. Under section 36 of the Criminal Justice Act 1988, the issue was whether the sentence was unduly lenient, not whether the Court of Appeal would have imposed the same sentence. A sentence is unduly lenient only if it falls outside the range reasonably open to a judge applying all relevant factors. Even then, the court retains a discretion whether to intervene: Attorney General’s Reference No 4 of 1989 [1990] 90 Cr.App.R 366; Attorney General’s Reference No 132 of 2001 (Johnson) [2002] EWCA Crim 1418, [2003] 1 Cr.App.R (S) 41.
2. Guideline category. The court rejected the submission that the offender’s culpability required Category 3A treatment because he had deliberately isolated the child. The sentencing judge had heard the trial evidence and was better placed to make that factual assessment. He was entitled to conclude that the circumstances did not involve deliberate isolation for the purpose of abuse and to place the offence in Category 3B.
3. Exceptional community sentence. The judge had carefully considered the seriousness of the offence, the offender’s age and immaturity, his mental disorder and learning disability, the expert reports, the purposes of sentencing and the likely effect of imprisonment in an adult prison. In the exceptional circumstances, he was entitled to conclude that a community order with a rehabilitation activity requirement was more likely than custody to rehabilitate the offender, prevent reoffending and protect the public. The likely impact of the coronavirus pandemic could also be taken into account: Attorney General’s Reference (R v Manning) [2020] EWCA Crim 592, [2020] 2 Cr.App.R (S) 46.
4. Punitive element and outcome. The fine was insufficient in view of the seriousness of the offence, while the compensation order was compensatory rather than punitive. The sentence was therefore unduly lenient to that limited extent. The court added a curfew requirement requiring the respondent to remain at his guardians’ address between 7 pm and 7 am for 12 months, without otherwise altering the sentence.

• Crown Court at Worcester: The respondent was convicted on 14 February 2020 and sentenced on 1 October 2020 to a three-year community order with a rehabilitation activity requirement, a fine, compensation and a victim surcharge.
• Court of Appeal (Criminal Division): Permission was granted under section 36 of the Criminal Justice Act 1988. The sentence was varied by adding a 12-month curfew requirement. It was otherwise left unchanged.