Practice and Procedure


PUBLISHED November 5, 2003

A sentence of 18 months detention and training order for an offence of indecent assault on a female was not manifestly excessive. A sentence different from that recommended in a pre sentence report was not wrong in principle and the judge had taken into account all relevant mitigating factors.Appeal, by the first defendant ('H'), with leave of the single judge, against a sentence of 18 months' detention and training order for indecent assault on a female and application for leave to appeal an extended sentence of 30 months for rape by the second defendant ('P'), referred to the full court by the registrar. On 24 June 2003 at Leicester Crown Court before HH Judge Burgess, both defendants pleaded guilty and were sentenced separately at a later date. The victim ('V') of both offences was at a night club where she danced in front of H and P. She agreed to leave with P and at his caravan had consensual sex but refused anal sex. P forced her to have anal sex then left the caravan. H came in and asked for sex, V refused and H held her down and pushed his fingers into her vagina. H pleaded guilty on the basis that he inserted two fingers into V's vagina, against her will, for two seconds. He didn't know V had had any sexual contact with P and P was not present at the time. P pleaded guilty on the basis that the sex was initially consensual but he had anal sex knowing she had not consented. H appealed sentence on the basis that the sentence was wrong in principle, as the judge ought to have followed the recommendation of the pre sentence report, which recommended a supervision order and a curfew. Further, the offence was an isolated out of character incident and whilst H had not initially shown remorse he was now remorseful. As H had served four months the appropriate order would be to set him free and impose a supervision order. P applied for leave to appeal sentence on the grounds it was manifestly excessive.HELD: (1) So far as H was concerned, where a recommendation contained in a pre sentence report was not followed it did not necessarily mean the sentence passed was wrong in principle. The judge was faced with a difficult sentencing exercise and had given proper consideration to all the mitigating features. Whilst the sentence was severe it was not manifestly excessive. (2) P's application was refused, the sentence could not be said to be manifestly excessive.Appeal dismissed and application refused.