Her Majesty's Solicitor General v AQY

A sentence is unduly lenient where it falls outside the range which a judge, applying all relevant factors, could reasonably regard as appropriate. Repeated sexual offences against one victim may attract consecutive sentences or concurrent terms that properly reflect the overall criminality; concurrent lead terms must be aggravated for the repetition.

Extreme youth and vulnerability may justify a higher harm category, or a sentence at the top of the applicable category range. Serious ill-health does not ordinarily reduce sentence. A reduction on grounds of mercy requires exceptional circumstances and evidence of serious prison-related consequences that ordinary prison healthcare cannot address. When an adult is sentenced for offending committed in youth, immaturity may substantially reduce culpability.

AQY was convicted at the Crown Court at Truro of historic sexual offences against his young cousin, committed between 1979 and 1982 when he was aged between 14 and 17. The offences included indecency with a child, indecent assaults and three counts of rape. He received concurrent sentences, with an effective term of four years and six months' imprisonment.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, contending that it was unduly lenient. The issues were the proper adult sentence for repeated sexual offending, the effect of the offender's youth at the time, and whether his ill-health justified a substantial reduction.

1. The reference was allowed. The effective sentence of four years and six months' imprisonment was unduly lenient because the judge made errors of sentencing principle.

2. The correct test was that stated in Attorney-General's Reference No 4 of 1989 [1990] 1 WLR 41. The court should respect a trial judge's assessment of evidence, but must correct an error in sentencing principle.

3. The sentencing judge could take the rape counts as lead offences and impose concurrent sentences reflecting totality. However, repeated sexual offences against the same victim had to be reflected by consecutive sentences or by aggravated concurrent terms. An adult starting point of eight years failed to allow for six oral or vaginal rapes over about nine months.

4. The victim's extreme youth and her vulnerability in relation to AQY indicated that the offending might properly fall within Category 2 harm. Even if Category 3B were correct, those features required a sentence towards the top of its range for a single offence.

5. The substantial reduction for ill-health was wrong in principle. Applying the guidance in Bernard [1997] 1 Cr App R (S) 135, ill-health warrants a merciful reduction only exceptionally and where there is evidence of serious difficulties in prison. The evidence showed only a need for monitoring and medication, which prison healthcare could provide.

6. A substantial reduction for AQY's youth at the time of offending was nevertheless appropriate, since immaturity reduced culpability. The evidence did not justify assuming that he had been 14 throughout. The least appropriate adult sentence was 13 years; applying the accepted five-eighths reduction produced a term slightly exceeding eight years.

7. The court quashed the four-and-a-half-year terms on Counts 5 to 7 and substituted concurrent terms of eight years' imprisonment. It took no action on Counts 3 and 4 because of unresolved uncertainty about the historical maximum sentence, and because those terms did not affect the effective sentence.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the court held the effective sentence unduly lenient and substituted concurrent eight-year terms on Counts 5 to 7: [2022] EWCA Crim 1280.

• Crown Court at Truro: AQY was convicted by a jury on 17 December 2021 and, on 11 March 2022, received concurrent sentences with an effective term of four years and six months' imprisonment.