R v Lewis White

In an Attorney General’s reference against an unduly lenient sentence, the Court of Appeal must assess whether the sentence fell outside the range that a judge, applying all relevant factors, could reasonably consider appropriate. Concurrent sentences must still reflect materially different types of offending and the totality of the criminality. Where the resulting custodial term is short or moderate, a community order may remain the proper sentence if there is a sufficient prospect of rehabilitation. The Court may therefore find the custodial term unduly lenient, quash the sentence, and impose a community order with appropriate rehabilitative and punitive requirements.

The offender pleaded guilty to six sexual offences, including making indecent photographs of children, causing or inciting a child to engage in sexual activity, and engaging in sexual communication with a child. The offences involving the child arose from extensive sexualised communications with a 13-year-old. The Crown Court imposed concurrent suspended sentences, with an effective term of two years’ imprisonment.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, arguing that the sentence failed to reflect the distinct types of offending and the additional indecent-image offending. The central questions were whether the sentence was unduly lenient and, if so, what sentence the Court should impose.

1. Reference allowed. The suspended sentences were quashed and replaced with three-year community orders for each offence, together with programme and rehabilitation activity requirements. A fine of £250 was also imposed.
2. The test for an unduly lenient sentence remained that stated in Attorney General’s Reference No 4 of 1989 [1990] 1 WLR 41: the sentence is unduly lenient where it falls outside the range of sentences which a judge, applying all relevant factors, could reasonably consider appropriate.
3. The sentencing judge was entitled to conclude that the aggravating and mitigating factors balanced each other. That assessment was not challenged. However, the lead sentence required an uplift to reflect the multiplicity of the offending. The sexual communication and incitement offences involved distinct conduct, and the category A images were separate offending rather than merely further similar offending.
4. The appropriate custodial term, after credit for the guilty pleas, was at or around three years. That term could not be suspended. Nevertheless, the relevant guidelines recognised that a community order with a sex offender treatment programme could be a proper alternative to a short or moderate custodial sentence. Given the sufficient prospect of rehabilitation and the need to protect children, a community order was the better option.
5. Each order was to continue until the specified programmes had been completed, notwithstanding the usual two-year administrative procedure. The offender was required to attend before his probation officer within 14 days and was warned that breach or further offending could lead to re-sentencing. The fine was payable within 28 days.

• Court of Appeal (Criminal Division): The Attorney General’s reference was allowed. The Crown Court sentence was quashed as unduly lenient and replaced with community orders and ancillary requirements: [2024] EWCA Crim 1390.
• Crown Court at Stoke-on-Trent: On 18 July 2024, Mr Recorder Taylor imposed concurrent suspended sentences with an effective term of two years’ imprisonment.