A three year community rehabilitation order was unduly lenient for offences of indecent assault on a 14-year-old boy and a sentence of at least two years' imprisonment was appropriate following a trial. However, given the defendant's time spent on remand and the principle of double jeopardy, it would be counter to public interest to return the defendant to prison for a short period as he was benefiting from the community rehabilitation order.Application by the Attorney-General to refer, under s.36 Criminal Justice Act 1988, a sentence of three years' community rehabilitation following convictions for three counts of indecent assault on a male. The defendant ('D') was convicted at Doncaster Crown Court on 16 May 2003. The victim ('V') of the offences was a 14-year-old boy. D knew V's mother and had spent time at their home. V's mother went on holiday leaving a neighbour in charge of V. D had access to the house and stayed there. Whilst V was asleep D put his hand in his clothing and masturbated him, V awoke, was very distressed and went to the neighbour's home. On two other occasions D touched V's genitals over his clothing. When D was interviewed he denied the offences. When sentencing, the judge was troubled by the fact that D had refused to admit inappropriate conduct and inappropriate desires until he was convicted but had since come out of denial and needed treatment. The judge stated that, bearing in mind the period of three months spent in custody on remand, if a short sentence was imposed there would be little or no opportunity for D to receive treatment in prison. The Attorney-General referred the sentence as unduly lenient as matters stood at the time of sentence. The aggravating features were: (i) D was in a position of responsibility as he was an adult in immediate charge of 14-year-old boy; (ii) there was a breach of trust; and (iii) he took advantage of the boy whilst he was asleep. In mitigation was the fact there was only a single victim and the offences were not the most serious of their kind. When D was 16 years old he had been convicted of indecent assault on his two younger brothers.HELD: (1) At the time of sentence it could have been regarded as unduly lenient even though the judge was right to take into account the period spent in custody. If a period in custody had been imposed the very least sentence following trial was two years' imprisonment. However, since that time and since the Attorney-General referred the sentence, there were further reports that showed that D was complying fully with the current order and demonstrating a willingness to address his behaviour. (2) A substituted sentence could not be more than 12 months because of the principle of double jeopardy. Account would then have to be taken of the period spent in custody on remand, which was equivalent to a period of six months. It would be counter to public interest to return D to prison for six months of which he would only serve three months. Accordingly, whilst the sentence was unduly lenient, a custodial sentence would not be imposed.Application refused.

[2003] EWCA Crim 3609