R v CH

In an Attorney General’s reference for undue leniency, the sentence must reflect the totality of persistent and serious offending. Where several features of harm and culpability make a case particularly grave, the starting point may require upward adjustment before aggravating and mitigating factors are considered.

An attempt will usually merit less punishment than the completed offence. The reduction depends on the circumstances, the stage at which it failed and the reason for non-completion. Where the attempt was not voluntarily abandoned, only a minimal reduction may be appropriate. A Goodyear sentencing indication does not prevent a law-officer reference.

The offender pleaded guilty to sexual offences committed against a child family member over several years. The offending included repeated sexual assaults, attempted rape and a rape on 18 November 2023. The Crown Court at Bradford, HHJ Burn, imposed concurrent sentences totalling nine years and six months’ imprisonment on 9 August 2024.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The principal issues were whether the judge had given proper effect to totality, particularly for the prior attempts and earlier sexual assault, and whether the plea discount affected the result.

1. Reference allowed. The court granted leave and held that the total sentence of nine years and six months was unduly lenient. A sentencing indication under R v Goodyear [2005] EWCA Crim 888 did not prevent the law-officer reference. The late request for that indication, after the section 28 cross-examination, had made it unwise for the judge to accede to it, but that was not the decisive issue.
2. The judge was entitled to place the individual offences in category 2A. However, the applicable Sentencing Guidelines permitted an upward adjustment from the starting point where multiple features of culpability or harm made the case particularly grave. The completed rape involved severe psychological harm, a vulnerable child victim, domestic circumstances, associated sexual assaults and a further sexual assault shortly afterwards.
3. The court held that the sentencing assessment also had to reflect planning, the use of alcohol, abuse of trust, steps to prevent reporting, and the presence and intimidation of the victim’s younger brother. Concurrent sentences for the offences on 18 November did not adequately reflect their totality. They also failed to reflect the earlier sexual assault and the three separate attempted rapes.
4. Applying Attorney-General’s Reference No 92 of 2015 (R v Silva) [2015] EWCA Crim 1965, an attempt will ordinarily attract less punishment than the completed offence, but the extent of reduction depends on its circumstances, stage and reason for failure. These attempts were not voluntarily abandoned. Any reduction should therefore have been minimal; the attempts should either have aggravated the later rape or received consecutive terms reduced as necessary for totality.
5. The court did not need to decide the precise proper guilty-plea discount. It substituted 15 years’ imprisonment for the nine years and six months imposed on count 17. The remaining sentences were unchanged and concurrent. It also quashed an unlawfully made administrative victim-surcharge order.

• Court of Appeal (Criminal Division): The court granted the Solicitor General leave to refer the sentence under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, and substituted 15 years’ imprisonment on count 17.
• Crown Court at Bradford (HHJ Burn): On 9 August 2024, the offender was sentenced to concurrent terms totalling nine years and six months’ imprisonment following guilty pleas.