Practice and Procedure


PUBLISHED December 9, 2003

A total sentence of four years' imprisonment for indecent assault, indecency with a child and attempted rape was unduly lenient, having regard to the guidelines in R v Millberry (2003) and the principle of double jeopardy, a sentence of seven years would be substituted. It was prosecuting counsel's duty to bring to a trial judge's attention any guideline cases before sentence was passed and to provide copies of the cases.Application by the Attorney-General to refer, under s.36 Criminal Justice Act 1988, a total sentence of four years' imprisonment following conviction for three counts of indecent assault, attempted rape and indecency with a child. The defendant ('D') was convicted at Cardiff Crown Court on 24 July 2003. The victim ('V') was aged 11 at the time of the first offence. V's parents had separated and V spent weekends at her father's home where D also lived. Between August 1997 and March 1998 D committed various sexual offences whilst V was left in his care. The offences started with kissing and touching and escalated to attempted rape. V told her father, after the first offence, but he called her a liar, however, he did discuss it with D who said it was innocent fun. D moved out but unbeknown to V's father still saw V when others were supposed to be looking after her. D told V that her parents did not love her because they did not kiss her the way he did. The offences eventually stopped when V's father re-married. In 2002 V told her father what had happened and the police were called. At trial the Crown did not give the judge any assistance on the recent guideline cases of R v Millberry & Ors (2003) 1 Cr App R 396 and Attorney-General v (1) CCE (2) NJK (3) TAG (2003) 2 Cr App R 151. The Attorney-General referred the sentence as unduly lenient given the aggravating factors of: (i) the victim was a child who D knew to be young and vulnerable; (ii) the offences occurred over a period of months notwithstanding that V's father had spoken to D; (iii) there was a breach of trust; (iv) D sought to drive a wedge between V and her parents; and (v) offences became increasingly serious and amounted to grooming. In mitigation was D's previous good character, and of marginal relevance, full rape was not committed. The Attorney-General contended that the case clearly came within the second category of R v Millberry (supra) and the judge should have had a starting point of eight years' imprisonment in mind.HELD: (1) The attention of the judge should have been drawn to the authorities and if it had it was impossible to believe that on the facts, he would have imposed the sentence he did. In cases where there were guidelines, prosecuting counsel should indicate to the judge, before sentence, that there were guideline cases and have copies for the judge to look at. The prosecution should regard that as part of their duty and should not feel inhibited when before an experienced judge. It had to be stressed that it was part of the duty of the prosecution. (2) The present case demonstrated that even experienced judges were not familiar with guideline cases, which ought to be known, and imposed inappropriate sentences. Imposing inappropriate sentenced did not help the administration of justice. The public would get the impression that the courts were not taking cases as seriously as they should, or indeed, imposing sentences which were too long which would then come before the Court of Appeal. The practice should be meticulously followed and in the future, where that was not done counsel coming to the Court of Appeal could expect a frosty reception. (3) having regard to the factors in R v Millberry (supra) the overall sentence should have been nine years' imprisonment. Having regard to the principle of double jeopardy the sentence would be increased to seven years in total.Leave to refer granted, application allowed.

[2003] EWCA Crim 3731