Rex v AFB

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal will intervene only where the sentence falls outside the range reasonably open to the sentencing judge. Proper regard must be given to the trial judge’s advantages, particularly where the offender gave evidence, and a clear error must be established.

Abuse of trust under the Sexual Offences guideline is fact-sensitive. Merely being placed in charge of a child does not establish it. A close examination of the facts and clear justification are required. Where specimen counts identify specific offences, sentencing must be based on those proved offences rather than a wider course of conduct alleged in evidence.

AFB was convicted at Bristol Crown Court of ten sexual offences involving three young girls. He was acquitted of ten similar counts. The counts were principally specimen counts and did not allege multiple incidents. The judge imposed concurrent sentences of two and a half years’ imprisonment and made an indefinite sexual harm prevention order.

The Attorney General applied under section 36 of the Criminal Justice Act 1988 for permission to refer the sentences as unduly lenient. The challenge concerned abuse of trust, the proper approach to the multiple offending and the judge’s reductions for AFB’s special needs, relative immaturity and vulnerability. The central issue was whether the sentences fell outside the range reasonably open to the judge.

1. Disposition and threshold. Permission to refer the sentences as unduly lenient was refused. Under section 36 of the Criminal Justice Act 1988, intervention required the court to be satisfied that the sentences fell outside the range reasonably open to the sentencing judge. The court had to give proper regard to the trial judge’s advantage, especially because the judge had seen AFB give evidence, and would need to be confident that a clear error had occurred.
2. Abuse of trust. The judge correctly treated the issue as fact-sensitive. The passage from Forbes [2016] EWCA (Crim) 1388 established that the guideline expression abuse of trust meant more than the ordinary trust placed in a relative or neighbour. The guideline required close examination of the facts and clear justification. Merely putting a person in charge of a child did not establish abuse of trust. The judge had considered the circumstances as a whole and was entitled to conclude that AFB was not in loco parentis and had no status warranting that finding. The offending could nevertheless involve an aggravating abuse of adult position.
3. Specimen counts and totality. Applying the principle in Canavan [1998] 1 WLR 604, the judge had to sentence for the ten specific offences proved, irrespective of a wider course of conduct alleged in evidence. The pre-sentence report wrongly proceeded on the basis of repeated offending. The judge was entitled to impose concurrent sentences and reflect the totality and proved aggravating features in the overall sentence, but a significant uplift based on repeated offending would have been required only if that had been the proper sentencing basis.
4. Personal circumstances and conclusion. The judge was entitled to rely on his own observation of AFB’s evidence when assessing special needs, relative immaturity and vulnerability. The absence of independent evidence and any reference to limitations in character references did not undermine those findings, particularly as the pre-sentence report did not contradict them. The sentencing exercise was conspicuously careful and the sentences remained within the reasonable range.

• Court of Appeal (Criminal Division): On 22 November 2022, refused permission for the Attorney General to refer the sentences as unduly lenient under section 36 of the Criminal Justice Act 1988.
• Crown Court at Bristol: On 10 June 2022, convicted AFB of ten sexual offences and acquitted him of ten similar counts. On 11 August 2022, the court imposed concurrent sentences of two and a half years’ imprisonment and made an indefinite sexual harm prevention order.