R v Andrew Clough

In an Attorney General’s reference against an allegedly unduly lenient sentence, the question is whether the sentence fell outside the range reasonably open to a judge who applied all relevant factors, subject to authority and sentencing guidelines. Where offending is an attempt and no real child is involved, harm is assessed first by the offender’s intentions, followed by a downward adjustment reflecting the absence of actual harm or a real victim. The extent of that adjustment is fact-sensitive and may be modest. The sentencing judge must also account for multiple offences, mitigation, guilty plea credit and totality. A sentence may be lenient yet remain within the reasonable range. Mercy may properly form part of the totality assessment.

The Attorney General referred a sentence imposed by the Crown Court at Stoke-on-Trent after the respondent pleaded guilty to three attempted sexual offences involving persons whom he believed to be children. In reality, each online profile was operated by an adult and no child was involved.

The sentencing judge imposed three years’ imprisonment for the principal count, with concurrent sentences of 16 months and eight months for the other counts. The Attorney General submitted that the sentence was unduly lenient, relying on the guideline starting point and the need to reflect the additional offences. The central issue was whether the sentence fell outside the reasonable range available to the judge.

1. Outcome. Leave to refer was refused and the application was dismissed. The sentence was lenient but not unduly lenient.
2. The applicable test remained whether the sentence fell outside the range of sentences which a judge, applying all relevant factors, could reasonably consider appropriate, subject to authority and the sentencing guidelines. The Court applied the test stated in Attorney General's Reference No 5 of 1989 11 Cr. App. R. (S) 489.
3. The sentencing judge was entitled to structure the sentence by identifying a headline sentence for the principal offence, reflecting the other offences in that sentence, and then applying totality. Her remarks showed that she had moved upwards from the eight-year starting point to reflect the two additional offences.
4. Under R v Reed and others [2021] EWCA 572 and the relevant guideline, harm was to be assessed initially by reference to the respondent’s intentions. A downward adjustment was then available to reflect that the sexual acts did not occur because there was no real child. The amount of the adjustment was for the sentencing judge to determine on the facts. A reduction of two years for the absence of victims could be regarded as relatively modest.
5. The judge was also entitled to make substantial reductions for mitigation, including remorse, good character and the consequences of the proceedings, and to give full credit for the guilty plea. Her description of the totality reduction as an act of mercy did not demonstrate error. There was room for mercy in sentencing.
6. The Attorney General’s proposed sentence would have required an unjustified increase from the eight-year starting point to 12 years. A sentence after trial of 60 months, reduced by one third for the guilty plea and further for totality, was within the reasonable range. The Court therefore declined to interfere.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under s 36 of the Criminal Justice Act 1988, leave was refused and the application was dismissed. The Court held that the Crown Court sentence was lenient but not unduly lenient.
• Crown Court at Stoke-on-Trent: The respondent pleaded guilty and was sentenced to three years’ imprisonment on the principal count, with concurrent sentences of 16 months and eight months on the other counts.