AZ, Re

A sentence is unduly lenient where it falls outside the range which a sentencing judge, taking account of all relevant factors, could reasonably regard as appropriate. In assessing that question, the court must consider the offender’s overall criminality, including distinct serious offences which require a substantial uplift to the lead sentence despite concurrent terms.

For child sexual offending, extreme youth may place harm in the highest guideline category. Planning, a gross breach of parental trust, recording the offence and its location may justify a substantial increase from the guideline starting point. An early guilty plea may then receive full credit.

AZ pleaded guilty to rape and sexual assaults of his young children, making indecent photographs of a child and distributing an indecent photograph. The offences included the filmed rape of his two-year-old daughter, sexual abuse of his four-year-old son, and the creation and distribution of images.

At Liverpool Crown Court, AZ received an extended determinate sentence of 17 years for rape, comprising 12 years’ custody and a five-year extended licence period. Concurrent sentences were imposed for the remaining counts.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, contending that it was unduly lenient. The central issue was whether the lead sentence adequately reflected the guideline assessment of harm, aggravating features and the totality of the offending.

1. Reference allowed. The court granted leave under section 36 of the Criminal Justice Act 1988 and held that the original sentence was unduly lenient. The sentencing judge had correctly selected the relevant guidelines, identified dangerousness and adopted a lead-offence approach. However, the resulting lead sentence did not reflect the full criminality.

2. The applicable test remained that stated in Attorney-General’s Reference No 4 of 1989 [1990] 1 WLR 41: a sentence is unduly lenient if it falls outside the range a judge, considering all relevant factors, could reasonably regard as appropriate. The original sentence met that test.

3. The rape fell squarely within Category 1 harm. The daughter’s extreme youth made the relevant vulnerability factor exceptionally serious. The aggravating location and the higher-culpability features of planning, gross parental abuse of trust and recording the offence justified a substantial uplift from the 16-year starting point.

4. The trial sentence selected for the lead count also failed to reflect the further sexual abuse of both children, the presence of each child during abuse of the other, and the making and sharing of images. The assault on the four-year-old son was separately very serious and required a substantial contribution to the total sentence, notwithstanding totality and proportionality.

5. The court quashed the 17-year extended determinate sentence on Count 1 and substituted an extended determinate sentence of 19 years and eight months, comprising 14 years and eight months’ custody and a five-year extended licence period. It also increased the Count 3 sentence from 40 to 54 months, concurrent with Count 1. The remaining sentences were unchanged.

• Court of Appeal (Criminal Division): On a Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court held the sentence unduly lenient and substituted longer sentences in [2022] EWCA Crim 620.

• Crown Court at Liverpool: On 17 December 2021, AZ was sentenced to an extended determinate sentence of 17 years on the rape count, with concurrent sentences for the other offences.