R v PDN

When an offender is sentenced for multiple serious offences, a sentence within the proper range for the lead offence may nevertheless be unduly lenient if it fails to reflect additional criminality, including a separate offence against another victim. The sentencing court must assess the offender’s overall criminality and may use concurrent sentences with a lead sentence or consecutive sentences. Where dangerousness is in issue, a pre-sentence report should be obtained and the assessment must consider risks to children beyond the identified victims. A significant ongoing risk of serious harm may justify an extended licence period; the Sex Offenders Register and the passage of time do not necessarily answer it.

Following convictions in the Crown Court at Nottingham for raping a child under 13 and assaulting another child under 13 by penetration, the respondent was sentenced to 13 years’ imprisonment on count 1 and 11 years concurrently on count 2, with additional licence periods. The trial judge had categorised both offences at the highest culpability level and had not obtained a pre-sentence report. She declined to make a finding of dangerousness, considering the risk to be confined to the two victims and addressed by a restraining order.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988, arguing that the aggregate sentence failed to reflect the second offence and that the offender presented a significant risk of serious harm to other children. The central issues were the proper aggregate sentence and whether an extended sentence was required.

1. The reference was allowed. Although 13 years was within the range reasonably open to the Recorder for count 1 viewed in isolation, the aggregate sentence had to reflect the serious additional criminality of count 2. That was a separate and discrete offence against a second victim. The aggregate custodial sentence of 13 years was therefore unduly lenient and well outside the proper range.

2. The appropriate minimum custodial element for the two offences taken together was 17 years. That was not merely an upward adjustment to a fixed sentence for count 1. A materially longer aggregate custodial sentence could have been imposed without being excessive. The court observed that the overall sentence could be achieved by concurrent sentences with a lead sentence reflecting the offender’s overall criminality, or by consecutive sentences.

3. Because dangerousness had to be considered, the Recorder should have obtained a pre-sentence report. The report before the court properly addressed the risk to children other than the two victims. On the facts of these offences, the court accepted that there was a significant ongoing risk of serious harm to any young children with whom the offender might come into contact after release.

4. That risk was not sufficiently answered by the passage of time or the requirements of the Sex Offenders Register. An extended licence period of four years was required.

5. The sentence on count 1 was quashed and replaced by an extended sentence of 21 years, comprising 17 years’ custody and an extended licence period of four years. The sentence on count 2 remained unchanged. The publication prohibition under section 3 of the Sexual Offences (Amendment) Act 1992 was not waived or lifted.

• Court of Appeal (Criminal Division): the Attorney General’s reference was allowed. The sentence on count 1 was quashed and replaced with an extended sentence of 21 years, comprising 17 years’ custody and a four-year extended licence period.
• Crown Court at Nottingham: the respondent had been sentenced to 13 years’ imprisonment on count 1 and 11 years concurrently on count 2, with additional licence periods.