Practice and Procedure


PUBLISHED February 17, 2003

A sentence of two and a half years for indecent assault and gross indecency with a child was lenient, however, taking into account the principle of double jeopardy it was not in the public interest to interfere where the substituted sentence would have been close to the original imposed.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988 as unduly lenient. On 13 September 2002 at Portsmouth Crown Court before HH Judge Hughes, the defendant ('C') pleaded guilty to ten counts of indecent assault and eight counts of gross indecency with a child. On 25 October 2002 C was sentenced to two and a half years' imprisonment by HH Judge Shawcross. The offences occurred between 1990 and 1995 whilst C was a canoeing instructor. Three children, then aged between eight and sixteen, were taught canoeing by C. He gave them presents, let them stay at his house and took them away on trips. During that time C indecently assaulted the boys by masturbation, mutual masturbation, ex-felatio and putting his penis between the boys legs from behind. In November 2000 C married. One of the boys reported the matter to the police in early 2002. C was interviewed and eventually admitted guilt. C was of previous good character and reports, available to the sentencing judge, stated that he had overcome his perversion and overcome any attraction felt towards young boys in his care. The psychiatric report recommended a non-custodial sentence. The judge considered it his duty to impose a custodial sentence. The Attorney-General referred the sentence as unduly lenient given the aggravating factors.HELD: (1) Taking into account all the matters the judge thought important, not least the early guilty plea and the contents of the reports, the sentence passed was lenient, possibly unduly lenient. (2) Following trial for this type of offence, where a breach of trust occurred, a sentence of six years was justified. An early plea of guilty justified a sentence of four years. (3) However, before the court could interfere it had to take into account the fact that C was facing sentence for a second time and the anxieties that caused. It was the practice of the court to give a discount for double jeopardy. (4) That would have the result that any substituted sentence would be close to the original imposed. It was not in the public interest for the court to take that course. After identifying the sentence that should have been passed the court declined to exercise its discretion to interfere.Application refused.