R v Ian Featherstone

On a reference under section 36 of the Criminal Justice Act 1988, a sentence is not unduly lenient merely because another sentence might have been preferred. The relevant question is whether the sentencing judge correctly applied the sentencing guidelines, considered the aggravating and mitigating features, and reached a sentence properly open to him. A custodial term may be suspended where appropriate punishment does not require immediate custody and punitive requirements reflect the seriousness of the offending. The reviewing court considers the evidence and information available to the sentencing judge.

Following guilty pleas to two offences of sexual activity with a child by a person in a position of trust, contrary to section 16 of the Sexual Offences Act 2003, the offender was sentenced at the Crown Court at Derby to concurrent 12-month terms suspended for 24 months, with curfew, unpaid work and programme requirements. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, arguing that the seriousness and aggravating features of the offending required a longer immediate custodial sentence. The central issue was whether the sentence was unduly lenient.

1. Scope of review. The court reviewed the sentence on the evidence and information before the sentencing judge. It therefore did not take account of a victim personal statement or supplementary probation report supplied later. The victim statement might have led to a somewhat longer custodial term, but it did not alter the court’s conclusion on suspension.
2. Custodial term. The offences involved a gross breach of trust and serious aggravating features, making custody unavoidable. There was nevertheless substantial personal mitigation. The sentencing judge correctly applied the offence-specific guideline, took account of the aggravating features and mitigation, and reached a custodial term within the range properly open to him.
3. Suspension. The judge considered the factors in the Imposition guideline and correctly focused on whether appropriate punishment could only be achieved by immediate custody. He was entitled to conclude that it could not, particularly because the suspended sentence requirements added a significant punitive element while also addressing rehabilitation.
4. The sentencing process was properly conducted and clearly explained. The sentence was not unduly lenient. Leave to refer was granted, but the application was refused, and the sentence remained unchanged.

• Court of Appeal (Criminal Division) — Leave to refer under section 36 of the Criminal Justice Act 1988 was granted, but the application was refused because the sentence was not unduly lenient.
• Crown Court at Derby — On 16 January 2023, the offender was sentenced to concurrent 12-month terms of imprisonment suspended for 24 months, with additional requirements.