Hassan, R. v

In an Attorney General’s reference, the question whether a sentence is unduly lenient must be decided on the material available to the sentencing judge. A later risk report cannot establish that the original sentence was unduly lenient. Once that threshold is met, however, the report may be considered in deciding whether the Court of Appeal should alter the sentence.

In a serious sexual case involving predatory offending and a materially similar previous sexual conviction, a judge should not impose a determinate sentence without a risk assessment indicating that the offender does not present a high risk of serious harm. The appropriate sentence may be an extended determinate sentence under the Criminal Justice Act 2003.

The offender was convicted at the Crown Court at Basildon of three vaginal rapes and an assault by penetration, all committed against one victim during a single incident. The Recorder imposed concurrent determinate sentences of 10 years and two months’ imprisonment for the rapes and seven years and 10 months for the assault by penetration.

The Attorney General referred the sentence as unduly lenient. The complaint did not concern the custodial length. It concerned the Recorder’s decision not to find dangerousness and not to impose an extended determinate sentence under the Criminal Justice Act 2003. The central issue was whether, on the material before the Recorder, a determinate sentence was reasonably open without a pre-sentence risk assessment.

1. The Attorney General’s reference was allowed. The Court quashed the determinate sentences and substituted concurrent extended determinate sentences. Each rape count carried a custodial term of 10 years and two months and a licence period of three years, making a total of 13 years and two months. The concurrent sentence for assault by penetration was altered on the same basis.

2. The Court held that the Recorder could not reasonably impose a determinate sentence on the material before him. The index offences were predatory and manipulative. They involved serious and sustained sexual offending against a vulnerable victim. The offender also had a materially similar previous conviction for sexual offending.

3. A pre-sentence report is almost always advisable in a serious sexual case, particularly rape, unless the case is so grave that an indeterminate sentence is inevitable. It assists the judge in assessing whether the offender remains in denial and whether there is a high risk of serious harm from future specified offences. In the circumstances of this case, a determinate sentence required a risk assessment indicating that the offender did not present such a risk.

4. Following Attorney-General’s Reference no. 84 of 2009 (R v Quain) [2010] EWCA 1879, the Court assessed undue leniency by reference only to material before the sentencing judge. The pre-appeal report was therefore inadmissible on that issue. After granting leave because the original material made the sentence unduly lenient, the Court could consider the report in deciding whether to interfere. The report confirmed a high risk of serious harm and showed that the issue was practical rather than academic.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court allowed the reference and substituted extended determinate sentences.
• Crown Court at Basildon: Following jury convictions for three rapes and assault by penetration, the Recorder imposed concurrent determinate sentences, with the principal term being 10 years and two months’ imprisonment.