R v AHA

A sentence is unduly lenient only if it falls outside the range which a judge, applying all relevant factors, could reasonably regard as appropriate. In guideline sentencing for rape, departure below the category range requires aggravating factors or mitigating factors of an unusual nature. Material aggravation must be reflected, including separate offending within the same course of conduct, even where concurrent sentences are appropriate. Mental-health difficulties require evidential and causal relevance before they mitigate sentence. A low risk of reoffending in a dangerousness assessment does not mitigate a determinate sentence. In serious sexual offending, late remorse and previous good character may carry only modest weight.

The offender pleaded guilty at the Crown Court at Preston to rape and assault by penetration committed against his niece while she was asleep and heavily intoxicated in her home. The sentencing judge imposed four years and 10 months’ imprisonment for rape and a concurrent three-year sentence for assault by penetration.

His Majesty’s Solicitor General applied under section 36 of the Criminal Justice Act 1988 to refer the sentences as unduly lenient. The central issue was whether the judge’s assessment of a six-and-a-half-year sentence after trial fell outside the range reasonably open to the sentencing court.

1. The reference was allowed. The court held that the rape sentence was unduly lenient and substituted six years and nine months’ imprisonment. The concurrent sentence for assault by penetration remained unchanged.
2. The applicable test was that stated in Attorney General’s Reference (No.4 of 1989) [1990] 1 WLR 41: a sentence is unduly lenient where it falls outside the range which a judge considering all relevant factors could reasonably regard as appropriate. The court also adopted the observation in McCusker [2023] EWCA (Crim.) 70 that intervention is reserved for substantial departure from ordinary sentencing norms.
3. For a category 2B rape offence, a sentencing judge may depart from the narrow category range, either upwards or downwards, but the relevant aggravating or mitigating features must be at least unusual. Otherwise, sentencing inconsistency would arise in offences commonly falling within that category.
4. The aggravating features required an uplift from the eight-year starting point. They included rape in the complainant’s own bedroom, breach of familial trust, and the offender’s intoxication. Although the assault by penetration was part of the same course of conduct and did not justify a consecutive sentence, it was separate offending. The lead rape sentence had to reflect it.
5. The asserted mental-health difficulties did not mitigate because there was no evidence that they were relevant to the offences or sufficient to reduce the custodial sentence. The probation officer’s low-risk assessment concerned dangerousness and did not mitigate a determinate sentence. Remorse was expressed late, after accounts inconsistent with the offending. Previous good character and other positive qualities carried modest weight in this serious sexual offending.
6. The least proper sentence after trial was nine years’ custody: the aggravating features took the rape count to the top of its category range and the separate assault required a further uplift. A 25 per cent reduction for the guilty plea produced six years and nine months’ imprisonment. The court declined to exercise its discretion to leave the unduly lenient sentence undisturbed.

1. Court of Appeal (Criminal Division) — In R v AHA [2023] EWCA Crim 1001, the court granted leave under section 36 of the Criminal Justice Act 1988, quashed the rape sentence, and substituted six years and nine months’ imprisonment.
2. Crown Court at Preston — On 5 May 2023, the offender received four years and 10 months’ imprisonment for rape and a concurrent three-year sentence for assault by penetration after guilty pleas.