R v Cory Thompson

Before forming an opinion on dangerousness, a sentencing court must obtain and consider a pre-sentence report unless it considers one unnecessary in the circumstances. In serious sexual-offence cases, a conclusion that an offender is not dangerous requires proper and careful investigation. Prosecutors must alert the court where it proposes to decide dangerousness without such a report. On an Attorney General’s reference, the appellate court reviews the sentence imposed, not the sentencing judge’s reasoning, and ordinarily determines undue leniency on the material available at sentencing. A sexual assault involving abduction may fall within category 1 of the guideline. Alcohol places it in category 1A only where directly linked to the sexual offence; otherwise category 1B may apply. Totality is an evaluative assessment of overall criminality, not a mathematical calculation.

Following a trial, the Crown Court at Derby convicted the offender of sexual assault against V1 and rape against V2. On 19 December 2024, the judge imposed consecutive sentences of one year and three months for the sexual assault and eight years for the rape, making nine years and three months in total.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The reference challenged the categorisation of the sexual assault, the assessment of aggravating and mitigating factors, the failure to obtain a pre-sentence report for the dangerousness assessment, and totality. The central questions were whether those errors made the sentence unduly lenient and whether the finding that the offender was not dangerous could stand.

1. The Court of Appeal granted leave to bring the reference but declined to increase the sentence. The rape was properly categorised within the options open to the sentencing judge.

2. The sexual assault was wrongly categorised as category 2B. Driving a victim who wished to go home to a secluded location so that she could be sexually assaulted was a clear act of abduction. The substantive sexual offence was therefore a category 1 offence. It was properly placed in category 1B rather than category 1A because, although alcohol was involved, it was not directly linked to the sexual offence and had not secured the victim’s compliance or inability to resist.

3. Totality involves standing back and assessing the overall criminality. It is not a scientific or percentage calculation. The Court reviewed the sentence imposed rather than the reasoning used to arrive at it. Although the resulting term was lenient, it was not unduly lenient merely because another judge might have imposed a higher sentence.

4. Section 30 of the Sentencing Act 2020 required the judge to obtain and consider a pre-sentence report before forming an opinion on dangerousness unless he considered one unnecessary. The judge neither made that formal determination nor explained why a report was unnecessary. Attorney General’s Reference No 145 of 2006 [2007] EWCA Crim 692 explained the statutory obligation, and Attorney General’s Reference (R v O’Rourke) [2021] EWCA Crim 1064; [2022] 1 Cr App R(S) 29 emphasised the importance of proper investigation before finding that an offender was not dangerous.

5. The failure to obtain a report was an error of law. The offender’s relevant previous convictions, recently completed licence period and offending while under investigation indicated that further probation information should have been obtained. The prosecution also had an obligation to raise the point where the judge proposed to determine dangerousness without a report.

6. Nevertheless, this was a court of review. The Court could consider fresh material only after finding the sentence unduly lenient and determining a replacement sentence. On the material available to the sentencing judge, and notwithstanding hesitation, the finding that the offender was not dangerous remained open. No extended determinate sentence was substituted.

1. Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, leave was granted but the sentence was not increased: [2025] EWCA Crim 1462.
2. Crown Court at Derby: On 19 December 2024, the offender was sentenced to nine years and three months’ imprisonment, comprising consecutive terms of eight years for rape and one year and three months for sexual assault.