Practice and Procedure


PUBLISHED February 10, 2003

A sentence of six years for attempted buggery and indecent assault was unduly lenient given that the defendant had several other convictions for violent sex attacks and posed a risk to women. A longer than commensurate sentence should have been imposed.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988 as unduly lenient. On 26 July at Bristol Crown Court before HH Judge Darwall-Smith, the defendant ('M') pleaded guilty to attempted buggery and indecent assault on a female. M was subsequently sentenced by HH Judge Boothman to a total of six years imprisonment, five years for the attempted buggery and six years for the indecent assault to run concurrently. His licence was extended to cover the whole term of imprisonment pursuant to s.86 Powers of Criminal Court (Sentencing) Act 2000. On 14 April 1993 the victim ('V') was walking home when she was grabbed from behind by M who was wearing a balaclava. M had a ten inch knife that he pressed into her waist. V tried to scream and M brought the knife up to her face and threatened to cut her. M rubbed her vagina over the top of her clothes, pulled down her trousers and knickers and put his erect penis against her anus. V said M did this two or three times. M then forced her to suck his penis, he ejaculated and ran away. V went home and called the police. At the time the police could not get a DNA profile from the semen stains. Following advances in the science of DNA the semen stains were re-examined in 2001 and a partial match was found between the semen and M. M was arrested on 26 November 2001 he denied the attack and he was remanded in custody. On arraignment on 5 February 2002 he pleaded not guilty to both counts. In March further forensic evidence was obtained from bloodstains at the scene. M offered a plea of guilty to the indecent assault that was rejected and eventually M pleaded guilty to both counts on the basis that he had been wearing a hooded top, not a balaclava, and had only tried to penetrate her anus once. M had a large number of previous convictions for similar assaults, including one, in 1996, for indecent assault and blackmail of a woman with whom he had had a relationship. The trial judge said that the court was bound to consider whether a longer than commensurate sentence should be imposed under s.80(2)(b) of the 2000 Act. The case was adjourned for reports. The reports, before the sentencing judge, highlighted the fact that M still posed a very serious risk to women. The Attorney-General referred the sentence as unduly lenient given the following aggravating factors: (i) the attack took place at night and M had concealed his face; (ii) M had a knife that he used to threaten V with, that he said he habitually carried; (iii) M had attempted to penetrate her anus at least once and forced her to perform oral sex; (iv) V had been left severely traumatised and was still undergoing counselling; (v) M had an alarming history of previous convictions for violent sex attacks. The mitigating factors were the plea of guilty, albeit it at a late stage, and the fact that since the present offence M had undergone treatment on a sex offender's programme whilst serving a sentence for a separate offence. In light of the nature of the offences and the aggravating features the judge should have passed a longer than commensurate sentence and used powers under s.80(2)(b) of the 2000 Act to the full extent.HELD: (1) Whilst there were two counts on the indictment it was not appropriate to pass consecutive sentences and the correct approach was adopted by the sentencing judge who had in mind the statutory maximum of ten years. (2) The judge should have taken advantage of the statutory provisions and the sentence passed was unduly lenient. A longer than commensurate sentence was necessary given the danger M posed to women. The starting point for the attempted buggery should have been nine years as in R v White 1996 2 Cr App R (S) 40 and where powers under s.80(2)(b) of the 2000 Act were invoked less benefit could be given for mitigating circumstances. (4) Little weight could be given to the principle of double jeopardy given the serious risk M posed. A sentence of eight and a half years should be substituted for the attempted buggary to run concurrently with the six years for indecent assault. The period of the licence should be extended to cover the whole term of imprisonment.Application allowed.