Practice and Procedure


PUBLISHED December 18, 2003

A sentence of 21 months' imprisonment for indecent assault on a male and taking indecent photographs of a child was unduly lenient, in all the circumstances an extended sentence was appropriate. The sentence would be quashed and a total sentence of five and a half years substituted, made up of a two and a half year custodial element and an extended period of three years. The defendant would be disqualified from working with children.Application by the Attorney-General to refer, under s.36 Criminal Justice Act 1988, a sentence of twenty one months following convictions for indecent assault on a male and making indecent photographs of children. The defendant ('D') was convicted at Teeside Crown Court on 23 May 2003. The victim ('V') of the offences was a fifteen year old boy who met D in an internet chat room. In January 2002 D, who was aged 50, posted a message in a teen chat room saying he was a 19 year old male looking for a chat. Between January and July 2002 D contacted V by phone and letter, after getting V to reveal his phone number and address. D sent gifts and money and offered to buy a scooter for V when he was 16. The letters and calls became more and more explicit. V eventually agreed to meet D and they went to a hotel where D took photographs of V. They met again where V joined D and two other young boys in a hotel room, where the indecent assault occurred. Following V's 16th birthday they met and had sex. V's mother eventually confronted V who told her what had happened, and she called the police. When D was arrested the police found the photographs of V and other items including handcuffs and lubricant. In interview D said V had made contact with him and had asked for a loan. D visited him in May 2002 to give him money for the scooter and had stayed at a hotel but no sex had taken place. It was only after V's 16th birthday that they had consensual sex. At trial D was acquitted of rape. The Attorney-General referred the sentence as unduly lenient given the aggravating factors of: (i) D used the internet to contact a young boy and hid his own age; (ii) he used presents to corrupt V; (iii) with V's agreement he had used the name Jenny so as to deceive V's mother and sister; (iv) the indecent assault was carefully planned; (v) the indecent assault took place in the presence of two other young boys; (vi) D kept in contact with V with a view to having sex when he reached 16; and (vii) V became suicidal as a result of the offences. Whilst there was clear evidence that V had had sexual contact with other young men there was no evidence to show he was promiscuous. It was clear he was being carefully groomed. In reliance on authorities the Attorney-General contended that the present case was an obvious case for the imposition of an extended sentence. Further, there was a mandatory requirement in offences such as these to disqualify D from working with children.HELD: (1) Having regard to all the circumstances, it was clear the sentence imposed was unduly lenient for the offences taken as a whole, including the taking of indecent photos. The appropriate sentence following a trial would have been three and a half years. (2) This was a case where it was inevitable the judge would consider an extended sentence as the period on licence was not adequate to prevent further offences and to secure rehabilitation. The judge should have imposed a sentence made up of a three and a half year custodial element with a licence period of three years. (3) D was currently at liberty, however, after careful consideration it was impossible to accept that this was a case where D shouldn't be returned to custody. Taking into account the principle of double jeopardy the sentence of 21 months would be quashed and a sentence of two and a half years substituted, further, an extended period of three years would be imposed giving a total sentence of five and a half years. (4) D would also be disqualified from working with children under s.28 Criminal Justice and Court Services Act 2000.Leave to refer granted, application allowed.

[2003] EWCA Crim 3948