Practice and Procedure


PUBLISHED March 19, 2003

A conditional discharge was unduly lenient for offences of indecent assault with a female under 13 years old and indecency with a child.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 22 October 2002 at Derby Crown Court before HH Judge Benson the defendant ('B') pleaded guilty to three specimen offences of indecent assault on a female under 13 years old and one specimen offence of indecency with a child. On 6 December 2002 he was sentenced to a conditional discharge for three years. The offences occurred between 1968 and 1972 when the victim ('V'), B's step-daughter, was aged between 8 and 12 years. B touched her breast area and genital area. V was also made to masturbate him, although not to ejaculation. The offences mostly happened at the weekend when V's mother was out. When V was 12 years old B went away and when he returned one year later he was a changed person and there were no more incidents. V left home when she was 16 years old but regularly returned. In 1984 V's mother gave birth to a daughter and V was anxious as to whether to report B's behaviour. In 1989 she confronted B who accepted that he had misbehaved and asked for forgiveness. Eventually in 2002 V reported B to the police because she was concerned as he had contact with young children through his work as an elder of a Pentecostal church. B was arrested in March 2002. In interview he admitted two incidents but said it was instigated by V. In the pre-sentence report B stated V was lying and had initiated the incidents. He only pleaded guilty to save her having to give evidence. The Attorney-General referred the sentence as unduly lenient given the aggravating factors of: (i) it was a course of conduct over a period of four years; (ii) B repeatedly touched V's private parts; (iii) B made V masturbate him; (iv) it was a grave breach of trust as he was her step-father; and (v) there were serious and enduring consequences. The mitigating factors were the plea of guilty, albeit late, the passage of time since the offences, B's age (62) and the minimal risk of re-offending.HELD: (1) The sentence passed was unduly lenient. A sentence in the region of between two and a half years and three years should have been the starting point in the court below. B was still adopting an ambiguous attitude to any responsibility for the offences by stating he was tempted by V. (2) Taking into account the principle of double jeopardy and the fact B would be deprived of his liberty for the first time the sentence passed should be quashed and a sentence of 18 months substituted for indecent assault with a female under 13 and a sentence of nine months for indecency with a child to run concurrent.Leave to refer granted. Application allowed.