Practice and Procedure


PUBLISHED January 31, 2003

A sentence of 12 months for sexual interference with a girl under thirteen was unduly lenient given the aggravating factors, a sentence of two and a half years was appropriate.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 5 August 2002 at the Carlisle Crown Court before HHJ Bell the defendant ('H') pleaded guilty to two counts of sexual intercourse with a girl under 13 years old contrary to s.5 Sexual Offences Act 1956. H, aged 32, was sentenced to a total of 12 months imprisonment and put on the sex offender's register for a period of 10 years. In May 2002 the victim ('V'), who was aged 12, was seen out of school by her brother ('B'). She was seen to kiss H through the window of his Volvo, he put his hand on her buttock. V's friend was sitting in the back of the car. V spotted B and she and her friend ran away and hid. B found them and took them to school but V would not explain what she had been doing. B later called H who apologised and pleaded with him not to tell his family. The police were called and they interviewed V. She told them that H was one of her friend's step-father and she had first met H at a party. H sent her text messages and suggested that they meet in a park. They met and he drove her to a lay-by and, at his suggestion they had sexual intercourse on the back seat. H did not wear a condom and told V that he would not ejaculate inside her. Following a further text message the same thing had happened. V said that she had been very frightened of getting pregnant and had never had sex before. On 23 May 2002 H was arrested and gave a no comment interview. H subsequently pleaded guilty. The sentencing judge saw an impact statement by V's mother, on the effect of the events on V. The statement said V was very withdrawn and when she had felt able to go back to school she was ridiculed by other children. Parents of other children would not let their children mix with V. The judge referred to the plea of guilty and other factors and said that H was merely a man who permitted an inclination to overcome his duty. The Attorney-General referred the sentence as unduly lenient given the aggravating factors of: (i) the difference of age between H and V; (ii) H had instigated the meetings, made the arrangements and suggested sex; (iii) V had been a virgin; (iv) H had not used a condom, and he had repeated the offence; and (v) the impact on V and the fact that it would have continued but for the intervention of B. The mitigating factors were the plea of guilty and the absence of any previous convictions. H argued that the sentence was not unduly lenient given his lack of previous convictions, the impact on his own family and the fact that H was not in a position of trust.HELD: (1) The fact that H was not in a position of trust was relevant to the seriousness of an offence and could not be cited as a mitigating factor. (2) There were a wide range of cases and sentences for sexual offences that took into account sometimes complex aggravating or mitigating features. (3) The present case was a straight forward one. H gave way to lust on a 12 year old girl, he committed two offences. (4) The court had to bear in mind the Sentencing Advisory Panel that stated that there were "broadly three dimensions to consider in cases of rape" (the dimensions also applied to indecent assault), namely the degree of harm, the level of culpability of the offender and the level of threat posed by the defendant to the society. A fourth consideration was added by LJ Mantel in Attorney-General's Reference sub nom CCC & Ors, namely the need to deter. (5) The sentence was unduly lenient and sentences of two and a half years on each count, to run concurrently, would be substituted. (6) The increase in sentence meant that H would remain on the sex offender's register indefinitely.Application granted.