R v ATD

Historical sexual offences should not be sentenced by mechanically applying current guideline figures or by treating the historic maximum as merely a cap. The judge must select the appropriate current guideline and make a measured and reflective assessment, adjusted by the maximum sentence applicable when the offence was committed. A sentence is unduly lenient where it falls outside the range that a judge applying all relevant factors could reasonably consider appropriate. Previous good character and exemplary conduct ordinarily carry little weight in this context. Where the sentence is not reasonably open, the Court of Appeal may quash it and impose the sentence that should have been imposed.

Following conviction after trial for a historical sexual assault contrary to section 14(1) of the Sexual Offences Act 1956, the offender received four years’ imprisonment and a one-year extended licence period. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether a four-and-a-half-year starting point, followed by a four-year sentence, was reasonably open after making measured reference to the modern analogous guideline and adjusting for the historic ten-year maximum.

The court granted leave to refer the sentence and allowed the reference.

1. Test for undue leniency. The correct formulation remained that stated in Attorney General’s Reference Number 4 of 1989 [1990] 1 WLR 41: a sentence is unduly lenient if it falls outside the range of sentences which a judge, applying their mind to all relevant factors, could reasonably consider appropriate.
2. Historical sexual offences. The sentencing judge must select the relevant current guideline and use it by measured and reflective reference, adjusted by the maximum sentence applicable when the offence was committed. A mechanical application of the modern figures, or construction of an alternative notional guideline, is impermissible. The court applied the approach in Forbes and others [2016] EWCA Crim 1388 and distinguished the error identified in Attorney General’s Reference 27 of 2015 [2015] EWCA Crim 1538.
3. Application. The modern equivalent was assault by penetration of a child under 13, with a category 2A starting point of 11 years and a range of seven to 15 years. The effect of the historic ten-year maximum required a measured reduction, but could not rationally produce a four-and-a-half-year starting point. Substantial mitigation, including the offender’s age, health, the impact on his wife and his conduct since the offence, could not justify reducing the sentence by more than 12 months. Good character and exemplary conduct ordinarily attract no significant weight in this context.
4. Disposition. The trial judge’s first-hand assessment of the victim and offender was respected, but the sentence was not reasonably open to her and lacked a satisfactory explanation. The four-year custodial sentence and one-year extended licence were quashed. A sentence of seven years’ imprisonment with a one-year extended licence was imposed.

1. Court of Appeal (Criminal Division) — On a reference under section 36 of the Criminal Justice Act 1988, leave was granted, the sentence was quashed, and a sentence of seven years’ imprisonment with a one-year extended licence was imposed: [2024] EWCA Crim 366.
2. Sentencing court — Following conviction after trial on 9 November 2023, the offender was sentenced on 5 January 2024 to four years’ imprisonment with a one-year extended licence.