Attorney General's Reference Nos 31, 45, 43, 42, 50 & 51 of 2003

This judgment relates to the review by this Court of six sentences passed on offenders. The power of this Court to review sentences arises under sections 35 and 36 of the Criminal Justice Act 1988. Section 35 identifies the cases to which the Act applies. Section 36 sets out the conditions which have to be fulfilled before this Court can interfere with a sentence. The relevant provisions of section 36 are as follows:

“36 (1) If it appears to the Attorney General –

(a)

that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and

(b)

that the case is one to which this Part of this Act applies, he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may –

(i)

quash any sentence passed on him in the proceeding; and

(ii)

in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.

(2)

Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that the judge erred in law as to his powers of sentencing or failed to impose a sentence required by section 109(2), 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000.

[These sections refer to automatic life sentences and minimum fixed term sentences.]

(3)

For the purposes of this Part of this Act any two or more sentences are to be treated as passed in the same proceeding if they would be so treated for the purposes of section 10 of the Criminal Appeal Act 1968.”

The application of Her Majesty’s Attorney General can only be made (as is stated in section 36(1)) if it “appears” to him that the sentence is unduly lenient. The section does not identify what should be the approach of this Court when a case is referred. Instead the section indicates that the courts power, if it decides to intervene, is to substitute a sentence that the court thinks is “appropriate”. The discretion on the court is, therefore, extremely wide. Assistance is, however, given as to when the court should intervene in Attorney General’s Reference (No. 4 of 1989) 90 Cr. App. R. 366 and (No. 5 of 1989) (R v Hill-Trevor) 90 Cr. App. R. 358. In those cases it was indicated that this Court should not intervene unless it was shown that there was some error of principle in the judge’s sentence, so that public confidence would be damaged if the sentence were not altered.

It is most important that this Court should adhere to this test in deciding whether to interfere with a sentence after having reviewed it under section 36. This Court does not interfere with a sentence which is said to be too severe unless it is manifestly excessive. Similarly, this Court will not interfere with a sentence on an Attorney General’s reference unless it is manifestly not sufficiently severe.

The power of the Attorney General to refer cases to this Court is not intended to interfere with the proper exercise of discretion of the trial judge as to what sentence is the appropriate sentence to apply. The trial judge is required to have regard to the guidelines issued by this Court. In the future the trial judge will also have to take into account the guidelines issued by the new Sentencing Guidelines Council established under section 167 of the Criminal Justice Act 2003 (“the 2003 Act”) as required by section 172. However, guidelines remain guidelines and it is perfectly appropriate for a judge not to follow the guidelines or not to follow an earlier authority of this Court on similar facts if in the circumstances he concludes that doing so will not result in the appropriate sentence. The judge should, however, explain when passing sentence, why the guidelines or the authority are not being followed. (Even in relation to the statutory guideline contained in Schedule 21 of the Criminal Justice Act 2003 in respect of minimum terms for those sentenced to a mandatory life sentence, the Schedule makes it clear that the judge retains a wide discretion). As has been said on many occasions previously sentencing is an art and not a science, it is part of the task of the sentencing judge to identify a case where the interests of the public will be best served by taking an exceptional course.

The position is different when this Court is considering whether to grant the Attorney General’s application to refer the case. For the purposes of the present appeals, in a letter dated 22 June 2004 (which was made available at the hearing), the Attorney General provided the Court with an account of the steps which are taken to ensure that, so far as possible, a reference is made only when it is justified. The decision to apply is made by the Attorney General or Solicitor General personally. In addition to the advice of the Crown Prosecution Service they are also advised by trial counsel for the prosecution and treasury counsel. The defendant’s counsel is also involved in the process. It is clear great care is being exercised.

However, the role of the Attorney General is separate from that of this Court and it is appropriate for the Attorney General to take into account considerations when deciding to make an application to this Court which it would not be appropriate for this Court to take into account when deciding the outcome of the application. Nonetheless, in the normal way, when an application is made by the Attorney General this Court will usually grant leave for the application to be made.

Having heard these six references we do not find it necessary to provide any advice to the Attorney General as to how this jurisdiction should be exercised in the future. The reference did, however, reveal that where the Attorney General is contending on a reference that the trial judge has wrongly imposed a community sentence rather than custody, it is important that this Court and the Attorney General are provided with up-to-date information as to the progress which the offender has made since the sentence was passed by the trial judge. This is important because even if the sentence at the time it was passed which was imposed was not an appropriate sentence, if the offender is responding to the community sentence then that could affect the outcome of the Attorney General’s reference.

In some cases the progress made by the offender after sentence will undermine the whole purpose of the application and because of this, not later than seven days before the hearing, this Court should not only obtain the reports that are relevant in this category of case but it should make the reports available to the Attorney General. The Attorney General can then consider whether it is desirable to withdraw the application.

At the conclusion of the hearing of the applications, so as not to prolong the uncertainty of the outcome of the applications, which the Court appreciates will be worrying for the offenders, the Court announced its decision in respect of each of the applications and indicated that the reasons for the decision would be given in this judgment later. We have given leave for all the applications which are before us to be made and now give reasons for our decisions.

We turn now to consider each of the applications in turn.

Thomas McInerney is 16 years of age, having been born on 20 October 1987. On 2 February 2004 he was convicted of one offence of robbery contrary to section 8(1) of the Theft Act 1968 and one offence of intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994. On 20 February 2004, when he was aged 16, he was sentenced in respect of each offence to 24 months of supervision with a requirement to attend 90 days at a specified activities intensive supervision and surveillance program. A curfew order with a tagging provision for 6 months was also made.

The offence took place during the evening of 25 September 2003 when the offender was 15. The victim (to whom we will refer as SW) was a young man acquainted with the offender who was walking in a street in Fulham when the offender approached and asked for money for cigarettes. SW refused. Some play fighting commenced but then events took a turn for the worse after the offender’s jacket had been ripped. The offender became abusive and violent, beating the victim about the body and manhandling him until the victim had parted with his mobile phone worth £280. SW, who had been bruised on his chest and back, made his way home to his parents with whom he was living. Subsequently, the offender made a threatening telephone call warning SW not to contact the police. He threatened violence to SW and his parents in the event of non-compliance. It was common ground that when SW handed over his telephone, he removed the SIM card. This provides some confirmation of what the offender told the police when interviewed, namely that the victim had left his mobile telephone with the offender until he could raise the money for the damage to the offender’s jacket.

The offender had previous convictions during 2002 and 2003. He had previously been subject to supervision and attendance centre orders for indecent assault, taking a motor vehicle without consent and criminal damage.

Between the date of these offences and the date on which he was sentenced, in relation to an earlier matter, the offender was made the subject of a supervision order for handling stolen goods and was conditionally discharged for possession of cannabis. He was also found to be in breach of curfew conditions attached to his bail. On 26 February 2004 he was sentenced to a 4-month detention and training order for driving offences.

A pre-sentence report, prepared by a social worker from the Youth Offending Team dated 2 March 2004 was before the sentencing judge (Mr Recorder Shanks). The Report indicated that the offender was minimising his role in the robbery and appeared reluctant to accept the impact of or the responsibility for what he had done. He did, however, recognise to some extent the impact upon the victim caused by the offence of intimidation. The report stated that the writer had been informed that the victim did not want the defendant to receive a custodial sentence and felt that the court process had been sufficient. The telephone had been returned. The writer of the report was of the view that the offender was lacking in social skills and this led him to respond in an aggressive or an inappropriate way. She was of the opinion that this could be linked to the difficulties he had at school and his resistance to any group work. He was then casually working with his brother-in-law earning £50 per day. She considered that he was at a high risk of reoffending. She recommended a curfew order together with a supervision order which would provide a higher level of supervision than the existing order in his case. She considered there should also be rigorous reporting requirements.

The Recorder also had available to him the assessment of his suitability for the intensive supervision and surveillance program. It was considered that the offender had shown the necessary commitment, attitude and motivation required to undertake “this rigorous and demanding program”.

For the hearing of the reference, this Court had requested up-to-date reports indicating how the offender had responded to the order made by the Recorder. Unfortunately, the report was only available immediately before the hearing and so it was not seen by Mr Richard Horwell and Mr Mark Heywood, who appeared on behalf of the Attorney General, until immediately prior to the hearing.

Among the authorities relied upon by the Attorney General was the Attorney General’s Reference Nos. 4 and 7 of 2002 2 Cr. App. R. Sentencing 77 P345. In the course of giving the judgment of the court in that case, Lord Woolf CJ referred to the prevalence of the offence of robberies in relation to mobile phones. He added, that “… those who did so must understand they would be punished severely. Custodial sentences would be the only option available to the courts where these offences were committed, unless there were exceptional circumstances. That would apply irrespective of the age of the offender and irrespective of whether the offender had previous convictions. However, both these factors were very important when a judge came to decide on the length of sentence.” Although the Court was careful to indicate in that case it was not giving new guidelines, it certainly supports the suggestion that the usual disposal in a case of this sort will be a custodial one. However, the reference to “exceptional circumstances” should be noted. Exceptional circumstances can include the real possibility that greater protection to the public would be provided by a meaningful sentence in the community rather than a custodial sentence.

The offender was a young man who had real problems. The indications were that unless his underlying offending behaviour was tackled, he would be likely progressively to commit more serious crimes. If the court could divert him from this prospect, that would certainly be constructive from the offender’s and the public’s point of view. The most recent report does suggest that the offender is responding positively to the order which the Recorder made. The order was an example of the more constructive sentencing options which are becoming increasingly available. The availability of tagging also provides a valuable safeguard for the public.

Having considered the facts of this particular case, it is our view that it cannot be said that the order made by the Recorder was one which was inappropriate. That it was appropriate was substantiated by subsequent events. Of course, this Court accepts that there is still a significant risk that despite the progress which is at present being made by this offender he could ‘go off the rails’ again. If he does, then the court will have ample powers to make sure that the appropriate punishment is passed. It is fortunate that orders of this nature are being more satisfactorily ‘policed’ now than was the case in the past. This means that this type of order can achieve better long-term protection for the public than can be achieved by a relatively short custodial sentence.

Whilst we remain concerned about the risk of Thomas McInerney’s reoffending, it is our opinion that this is reduced by the fact that he has attended all youth offending team appointments, his conforming to the requirements of his curfew order and his positive attitude towards employment. Thomas McInerny has a close family who are concerned about his offending and are supporting him in meeting the requirements of the order and his wish to work. The reporting officer’s opinion was that the most effective way of reducing the residual risks of his reoffending is for him to continue to attend his youth offending team appointments which focus on a cognitive behavioural approach in relation to his thinking skills. She also thought the acquisition of employment would engage him in a positive way within the community and help him to develop a sense of responsibility.

This Court therefore decided not to interfere with the sentence of the Recorder. It would, however, stress that if the offender does not comply with the present order, he cannot expect the present opportunity he has been given to be repeated.

Adele McLean is 20 years of age, having been born 31 January 1984. On 4 March 2004, at the Crown Court at Liverpool before His Honour Judge Cromptom, she pleaded guilty to robbery. The case was then adjourned for the preparation of pre-sentence reports. On 26 March 2004 she was sentenced to 8 months’ imprisonment.

On 10 May 2003 the victim was sitting in a car making a telephone call. It was about 4.30pm. The offender approached the car from the front, looked into the car and then passed around the back of the car and opened the driver’s door. She asked the victim to call the police because her boyfriend had taken her child. The victim was suspicious but nonetheless agree to call the police. The offender then changed her mind and said that would not be possible. The victim then offered to drive the offender to wherever the child was. The victim made the offer because she felt intimidated by the offender’s presence. The offender then tried to grab the car keys. There was a struggle and the offender slapped the victim across the face. Part of the bunch of keys broke off and the offender ran away with this section of keys and the victim’s mobile telephone.

The victim attempted to follow the offender but was unable to do so and she returned to the place where the robbery had taken place. She then saw the offender again and the offender again tried to open the door of the car, so the victim drove off. She then returned with a friend and once again the offender tried to open the car door but when she was challenged she ran away pursued by the victim’s friend and another man. A few minutes later she was arrested and the victim’s property was returned to her.

When the offender pleaded guilty, she was unaware that it was thought at that time that the victim was unwilling to give evidence. Her solicitors were subsequently apprised of the difficulty of which the judge was also aware, but the offender stood by her plea. Without the victim’s evidence there could have been difficulties in securing a conviction.

The Attorney General relies on the fact that the attack was pre-meditated on a lone female and that the offender returned to the scene as aggravating factors. The Attorney General treats as mitigating factors; the fact that the offender had no previous convictions for robbery; the fact that the violence was limited to a singe slap; and the offender’s plea which was maintained, despite the fact that the victim might not attend court. He submits that the sentence was unduly lenient.

In addition to Attorney General Reference Nos. 4 and 7, which we have already cited, the Attorney General relied upon the case of the Attorney General’s Reference No. 76 of 2003 (subnom R v Carson (Penelope) [2004] EWCA Crim 886. In that case the offender was 26 years of age and pleaded guilty to one count of robbery. She was originally sentenced to an 80 hours community punishment order and a two-year community rehabilitation order. The violence was greater than that in this case. Two people were involved and, in addition to a mobile phone, £170, £4 of milk tokens and a Child Benefit book was stolen. The victim’s protests that it would leave her and her child with nothing at all went unheeded. The offender also threatened more violence if she contacted the police. The victim had a black eye, a cut behind the ear and a lump on her head. The offender in Carson had, as in this reference, a bad record when she was dealt with by this Court. But she had completed 80 hours of the community punishment, and in addition, she had made progress on the community rehabilitation order, although there were some earlier breaches of the order. In giving the judgment of this Court, Kay LJ said that this was a case which demanded a custodial sentence. He also rejected the suggestion that it was not necessary to impose a custodial sentence because of the progress that the offender had made. The Court quashed the sentence which was passed and substituted for it a sentence of 12 months’ imprisonment.

Judge Cromptom, when sentencing on this reference, had a pre-sentence report which indicated that the offence was motivated by the offender’s need to finance her use of heroin. She was ashamed of her actions, but at the time when she committed the offence her only thoughts were for herself. She had previously received a 12 month community rehabilitation order with a condition to attend an ‘addressing substance related offending’ program in June 2003 but her response had been poor. She had a child when she was 15 and that child was then living with one of the offender’s aunts. The probation officer’s conclusions were that the offender’s life “had escalated out of control, is behaving in reckless way which she says has shocked her. She was tearful in interview and appeared genuine in her regret.” Whilst she was the sole defendant, the probation officer thought she was under the influence of other male offenders. The offender also wrote to the judge expressing her regrets.

In sentencing the offender, Judge Cromptom indicated, “in the ordinary run of events I may well have sentenced you to something like two-and-a-half years imprisonment”, he then went on to say that there were “fairly unusual circumstances” and because of them he intended to impose “an exceptionally lenient sentence of 8 months”. It appears probable that part of the unusual circumstances the judge was referring to was the fact that the offender had not sought to go back on her plea notwithstanding that she would have had reason to think that a prosecution might have difficulty in proving its case.

The judge also referred to the fact that the offender was now drug-free and this could make it possible for consideration to be given to her being reunited with her child.

Although the offender was entitled to full credit for her frankness, the fact that she did not seek to change her plea is not a matter to which we would attach great weight. She knew she had committed the offence and if, as she suggested, she was repentant about what she had done, her proper course was to plead guilty.

Even if the matters had remained as they were when this case was before the trial judge, we would have regarded the sentence as being low but we would probably not have interfered with it. If we had done so, we would have to make an allowance for double-jeopardy and, bearing in mind the early release arrangements, which are now in place, we would have doubted that any advantage would be achieved by sending this offender back into prison, because she would inevitably been released before this Court could intervene. The trial judge, as he made clear, knew what would be the normal sentence and that he was taking an exceptional course and had made it clear in his sentencing remarks that he was taking an unusual course. There was no point of principle therefore involved.

However, there was before us an additional report from a different probation officer indicating that the offender had been released on 16 April 2004, that while her initial response to supervision had been unsatisfactory, she was in the process of regaining custody of her daughter and as part of the process was undertaking drug tests to determine whether she was capable of taking full parental responsibility. With the support of her supervising officer she was now taking necessary steps to address her drug use. A referral was being made to a supported housing project that provided rehabilitation to families recovering from drug dependency. It offered a range of therapeutic services, family support, parenting skills and advice. The officer concludes by saying, “the offender had shown commitment to trying to regain custody of her daughter and in taking her life in a more positive direction which process would be adversely affected by her being returned to prison”. The officer considered that to return her would “in fact, damage her motivation and her willingness to move her life in a more productive manner”.

We can understand why the officer came to this conclusion and we have decided it would not be in the public interest to return her to prison. The Attorney General’s Reference No. 76 of 2003 is a more serious case than this and the 8 months’ imprisonment in this case is comparable with the 12 months custody imposed by Lord Justice Kay in that case. Accordingly, we make no order on the Attorney General’s application.

We turn next to the offender Daniel Lee Burgess. He is now aged 21, having been born on 6 April 1983. On 12 December 2003, following a trial at the Manchester Crown Court before Mr Recorder Osbourne and a jury, the offender was convicted of wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861 (the “1861 Act”). After a pre-sentence report had been obtained, on 12 March 2004 the offender was sentenced to a two-year community rehabilitation order, with a condition that he should attend an ‘addressing substance related offending’ programme. He was also ordered to pay £500 compensation to the victim.

The circumstances of the offence were as follows. At about 9pm on Friday 18 April 2003, the victim Wesley O’Neill, who was then aged 16, and a friend were walking along Wolsey Street in Radcliffe towards the town centre. They were going to a snooker club. They passed a group of about 4 or 5 young men, including the offender, who were standing outside the Lord Raglan public house. One of the group was heard to say, “Are you going to bottle him?” The offender, who was holding a glass bottle, then began to walk across the road towards the victim. The victim’s friend shouted at him to run and at the same time the offender began to run towards the victim. The victim ran along the pavement and took refuge in a chip shop, closing the door behind him. However, the offender followed the victim into the shop. He pushed the victim against the counter and hit him a number of times on the head, shoulders and upper body with the bottle. Some of the blows also landed on the victim’s hands as he sought to protect himself. The offender then made off, leaving behind the bottle which was still intact.

The proprietor of the shop gave the victim some paper towels for his injuries, some of which were bleeding. The victim then went to the Accident and Emergency Department of Fairfield Hospital, where he was found to have a two-centimetre laceration to the top of his head and a one and a half centimetre laceration to the right side of his head. The wounds were stapled. The victim also had pain in the right shoulder and hand. He was given medication and a support bandage for his right wrist. The victim recovered physically from his injuries, but remains wary of the offender or any of his associates. He has subsequently moved away from his home and the Radcliffe area for fear of reprisals from the offender.

Three months after the incident in question, the offender approached the victim on the street and asked, “Are you the one that got bottled a couple of months ago in the chippy?” When the victim confirmed that he was, the offender said “Well I got the wrong person”. The offender entered his name and number into the victim’s mobile telephone and said “My name’s Danny Burgess, if you’re ever in trouble, phone me”.

When subsequently arrested and interviewed, the offender said that he had entered the chip shop to buy food. He said that he thought that the victim was someone else, a person who owed money to his sister’s friend. He claimed that he threw a punch at the victim, not realising that he still had a bottle in his hand. At trial, he pleaded guilty to the alternative lesser offence of wounding, contrary to section 20 of the 1861 Act. However, that plea of guilty was not acceptable to the prosecution.

The offender had previous convictions for driving offences in 2001 and 2003. In March 2003, the offender was sentenced to a community rehabilitation order for 18 months for offences of aggravated vehicle taking and driving with excess alcohol. Between the date of the index offence and the date on which he was sentenced, the offender pleaded guilty at the Bury Magistrates’ Court to a further separate offence of wounding, contrary to section 20 of the 1861Act. That matter was committed to the Manchester Crown Court for sentence on the same day as the index offence and was dealt with by the same judge, who imposed no separate penalty in respect of that particular offence.

In passing sentence for the index offence, the Recorder expressed the view that the offender’s criminality was “more adequately dealt with by section 20 of the Act, to which you were willing to plead guilty”. So far as concerns the separate section 20 offence, the Recorder observed that “it would be futile to impose any particular penalty or to impose a concurrent penalty”, because the two years’ community rehabilitation order would be sufficient to make the offender see the error of his ways.

The Attorney General relied upon the following features as aggravating the index offence: first, the offender singled out his victim and then pursued him and cornered him; second, the offender carried out an unprovoked, sustained and violent attack upon the victim, striking his head and body and causing significant injury; third, the offender had used a weapon, namely a glass bottle. On the other hand, the Attorney General recognised that there were mitigating features, namely that the offender readily admitted that he had carried out the attack on the victim and that he had purported to explain his actions as a case of mistaken identity.

On behalf of the offender, Mr Benson frankly acknowledged that this Court was very likely to come to the conclusion that the sentence passed by the Recorder for this offence of wounding with intent was unduly lenient. In our view, Mr Benson’s approach was both realistic and entirely right in the circumstances of this case. Mr Benson then referred to and relied upon the information provided and views expressed by the Probation Officer in her supplementary report dated 4 May 2004. It was Mr Benson’s core submission that, in the light of the undoubted progress made by the offender whilst complying with the terms of the community rehabilitation order and the fact that he is now in proper, full-time employment, this Court should exercise its discretion not to interfere with the sentence passed by the Recorder.

We say at once that we entirely agree with the Attorney General’s submission that the Recorder’s community sentence for the index offence was unduly lenient. As the Attorney General pointed out, the sentence wholly failed to mark the gravity of the offence, which consisted of an unprovoked attack upon an innocent victim who suffered head injuries as a result, and the aggravating features present during the commission of the offence, namely the chasing and cornering of the victim, the use of a bottle as a weapon and the repeated blows to the head and upper body of the victim with that weapon.

As Lord Taylor C.J. pointed out, when giving the judgment of the Court in Attorney General’s Reference No. 41 of 1994 (Michael James O’Boyle) (1995) 16 Cr. App. R (S) 792 at page 794, the level of sentencing for this sort of section 18 offence is “somewhere between two-and-a-half years’ to five years’ imprisonment, depending on the individual circumstances”. In this case, it is apparent from his sentencing remarks that the Recorder considered that section 20 of the 1861 Act more properly reflected the offender’s actual criminality with regard to the index offence and he appears to have approached the question of sentence on that basis. Having regard to the circumstances of the offence and the verdict of the jury, we consider that approach to have been wholly inappropriate and wrong. The result was a sentence that was not only unduly lenient but also one that was manifestly so.

We have come to the conclusion that the sentence actually passed was so unduly lenient that it would not be a proper exercise of our discretion to take the course urged upon us by Mr Benson. In our judgment, bearing in mind the offender’s age and his previous convictions, the appropriate sentence for this offence of wounding with intent would have been three-and-a-half years imprisonment. To take account of double jeopardy, we reduce that sentence to one of two-and-a-half years imprisonment. We therefore discharge the community rehabilitation order made by the Recorder and substitute for it a term of two-and-a-half years imprisonment.

We conclude our judgment in this particular reference by observing that, in our view, the Recorder also fell into significant error in his treatment of the section 20 offence. We have been made fully aware of the factual circumstances of that particular offence, but do not feel that is necessary to set them out in this judgment. Suffice it to say that we are satisfied that the offence was a further and entirely separate offence of significant violence, the seriousness of which required that it be dealt with by a separate and appropriate sentence. In our view, the way in which the Recorder actually dealt with the matter was wrong in principle and, once more, the result was a wholly inappropriate sentence. However, having regard to the conclusion that we have reached with regard to the index offence, we have come to the conclusion that it is not necessary to go on and consider whether it would be either possible or appropriate in this reference for us to interfere with the order made by the Recorder in respect of the separate section 20 offence. In our view, it is sufficient that we make abundantly clear our disapproval of the course actually taken by the Recorder.

We now deal with the case of AC. We describe him by initials to avoid the victim being identified.

On 12 March 2004, at Derby Crown Court, AC pleaded guilty to 14 counts of indecent assault. On each of counts 1 to 10 he was sentenced to 9 months’ imprisonment. On each of counts 11 to 14, which were committed after section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 took effect from 30 September 1998, he was sentenced to concurrent extended sentences of two years and nine months, consisting of a custodial sentence of nine months and an extension period of further licence of two years. All the sentences were concurrent. The judge purported to make it a condition of the extended licence that the offender should participate in a community sex offender group work programme.

The victim of the indecent assaults was the offender’s stepdaughter, J. He moved in to live with her mother, Mrs C, and her elder brother in 1995 when she was five years of age. Mrs C suffered from physical and mental health problems including depression. She was dependant on the offender’s care and support.

The offender and J appeared to get on well, but in 2000 when she was eleven she told her mother that the offender had been touching her in an indecent way. Mrs C confronted the offender who denied any improper conduct. No report was made to the authorities and the family continued to live together.

However, in the early summer of 2003 Mrs C discussed the matter with her GP who reported the matter to a social worker who spoke to J, then 14. J alleged that the offender had touched her between her legs between the ages of five and eleven. She did not wish to complain to the police. Nevertheless her allegations were reported to the police who put them to the offender at the end of July 2003. He admitted indecently assaulting J. He believed that J was six or seven when the abuse began. It occurred about once a week in a bedroom at home or in his lock-up garage when Mrs C was out. He said that he had touched J’s genital area both over and under her pants. He denied any digital penetration. He said that neither he nor J had removed their clothes and he had never required her to touch him.

The offender told the police that when J had told her mother he had realised that his actions were wrong and he had wanted to get matters back on an even keel. He said that no indecent conduct had occurred since then, three years ago. He was willing to undertake counselling to help prevent him committing similar offences.

J was seen by the police. She did not wish to be interviewed on video or attend court to give evidence. She also indicated, and confirmed in a formal statement dated 1 February 2004, that although she thought the offender deserved to go to prison she did not want him to go to prison because if he did her mother would live with her and her elder brother. If he did not go to prison her mother would live with him. She did not want to live with her mother, as they did not get on.

By the time of the court hearing the offender was still largely looking after Mrs C although her 18 year old son was her registered carer because the offender was in work. Since the offender’s imprisonment the son has cared for her.

The aggravating features of the offences were that the victim was young, the offender was in a position of trust towards her, and the conduct was repeated regularly over a period of about six years.

The mitigating features were that the offender made full admissions and pleas were entered at the first opportunity. But for his admissions the Crown would have been unable to prosecute him. The offender, who is 44, was of previous good character. He had shown genuine remorse.

The judge was aware of previous decisions of this court, in particular Attorney General’s References Nos. 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41 and 42 of 2003 [2004] 1 Cr. App. R. (S) 83 at page 499, at that time only available to him in short form in the Times Law Report. That case confirmed that in all sexual offences sentencers should consider the degree of harm to the victim, the level of culpability of the offender, the level of risk posed by the offender to society, and the need to deter others from acting in a similar fashion.

The judge told the offender that in the normal course of events the proper sentence would be in the order of 3 years’ imprisonment, bearing in mind the length of time of offending. But in what he saw as the exceptional circumstances of the case he was reducing that sentence to a period of 9 months. He said: “I am moved to take that lenient course by your plea of guilty, by the fact that you have by yourself provided the evidence in this case, by the appeal made by the victim … that you are not sent to prison, by the desperate condition of your wife … the burden will now fall on her children to … assist her, and by the fact which I consider of particular relevance that this course of conduct … was over, finished, three years ago and there has been no repetition or reiteration since.” The judge then proceeded to deal with the need for an extended period of licence with a condition of participation in a community sex offender work programme after release from prison.

By the time of the hearing before us, J, now 15, had made a further statement dated 18 June 2004, saying that she would like the offender to receive a lengthier prison sentence. She thought his abuse had affected her life. It had made her suspicious of meeting men and forming new relationships with men.

Mr Holt, for the offender, did not take issue with the extended licence, but he argued that the circumstances of the offender’s case were wholly exceptional and that the judge did not fall into error at all. He stressed the features which appealed to the sentencing judge. He submitted that the care provided by Mrs C’s 18 year-old son could only be a short, temporary measure, and that the victim’s views were neither clear nor consistent.

In our view, as Mr Horwell submitted for the Attorney General, sentencers should exercise caution in attaching weight to particular elements of victim impact statements in this kind of case where the victim was still of immature years and a member of a family of which the offender was still part. In the present case, in our view, the judge attached too much weight to the victim’s statement that she did not want the offender to go to prison. Her wishes in that respect were not based on any feeling that he did not deserve imprisonment but on her antipathy to the prospect of having to live with her mother if the victim did go to prison. The judge also attached too much weight to the fact that the offender had not assaulted the victim for some three years before he was prosecuted. He desisted only when the victim showed herself to be old enough to tell her mother, his wife, what had happened, and he must have appreciated the risks he would take if he attempted further indecency. It is the nature and special vice of sexual offences committed within the family that they, and the sentences which follow, bring suffering not only to the victim but to other members of the family, particularly if they are vulnerable as Mrs C was, and although the judge could not ignore the effect of the offender’s imprisonment on his wife, it was, in our view, no justification for the judge reducing the proper sentence as he did.

We agree with the Attorney General’s submissions that the sentence imposed in this case was unduly lenient. He referred to R v Millberry [2003] 1 Cr. App. R. 396 and to the Attorney General Reference Nos. 91, 119 and 120 of 2002 [2003] 2 Cr. App. R. (S) 55 at p328. In our view, taking all the mitigating factors into account, the custodial sentence should still have been of the order of 3 years, bearing in mind particularly the age of the victim, her relationship to the offender and the multiplicity and duration of offending.

The extension period of two years further licence was amply justified, but it was accepted in Attorney General’s References Nos. 37, 38, 44, 54, 51, 53, 35, 40 43, 45, 41 and 42 of 2003, to which we have already referred, that there is no power in the Powers of Criminal Courts (Sentencing) Act 2000 for the judge to impose a condition of participation in a course or programme. The decision as to conditions to be imposed during the licence period is one to be made prior to release on licence and not, therefore, for the court.

We must take account of the double jeopardy caused by the offender facing sentence for a second time. So we quash the sentences imposed by the judge and substitute sentences of two years’ imprisonment on counts 1 to 10. On counts 11 to 14 there will be extended sentences of four years consisting of custodial sentences of two years and extension periods of two years during which the offender will be subject to licence. Those sentences will run concurrently.

The increase of the custodial sentence to a total of two years will not affect the duration of the notification requirements under the Sex Offenders Act 1997, which will remain 10 years. The increase in sentence does, however, means that the provisions of section 28 of the Criminal Justice and Court Services Act 2000 apply. Unless the offender gives notice within 14 days that he wishes to be heard on the matter, there will be an order that the offender be disqualified from working with children, that is with persons under the age of 18.

Finally, we turn to the case of Mr and Mrs Lehal. Surinder Lehal is 40 years of age having been born on 7 February 1964. His wife is Bhupinder Lehal. She is 37 years of age, having been born 20 October 1966. Hereafter, we refer to them as “the first offender” and “the second offender”.

On 12 March 2004 the first and second offenders pleaded guilty to doing the acts tending and intended to pervert the course of public justice. This was at the Maidstone Crown Court before His Honour Judge McKinnon. They were each sentenced to 12 months imprisonment suspended for two years’.

The offences were committed following the stabbing to death of Kamaljit Singh “Bobby” Kalon on 10 July 2003 between 8 and 8.15pm. As a result of the stabbing Kalon died. One of those suspected of being responsible for the death was Jinder Kooner who is the brother of the second offender and the other was Guljinder Singh Grewal, the cousin of the second offender.

Kalon had worked in the same factory as the second offender and the two became friends. He married in April 2001 but his friendship with the second offender continued. It was a volatile friendship and the deceased constantly pestered the second offender and used or threatened violence towards her and her property. He was often drunk. Two days before his death Kalon confronted the second offender in the street and bullied her to get into his car. He then assaulted her and refused to let her get out of the car. He threatened to kill her and took her purse away and the chip from her mobile telephone. Eventually, at the request of the second offender he took her to hospital. In the hospital he told the second offender that he loved her and wanted to marry her.

The first offender found out that the second offender was at the hospital and he came to collect her with her brother, Jinder. They all then returned to the first and second offender’s home at 94 Edwin Street. The following morning when the first offender was alone at 94 Edwin Street Kalon came to the house and banged and kicked the door repeatedly. The second offender was sufficiently disturbed to call the police. Kalon then telephoned her several times and later pushed the purse and telephone chip which he had taken through the letterbox. That evening the first offender returned to his home with Guljinder. He was told that Kalon had caused injuries to the second offender. Guljinder then telephoned Kalon’s wife and said he was going to kill Kalon.

On 10 July 2003 Kalon telephoned the second offender three times. She told the police that Kalon said he was coming to get her and that nobody could save her. After the final telephone call the second offender telephoned Guljinder twice and he in turn telephoned the first offender.

The first offender came home from work at about 8pm and Kalon was stabbed between 8pm and 8.15pm that same evening. Kalon had armed himself with a knife but was disarmed and was stabbed to death by Guljinder while Jinder held him down. Later Guljinder and Jinder ran into the basement of 94 Edwin Street which was unlocked. The second offender was leaning out of the window when they arrived. They were covered in blood and sweating. They changed into clean clothes which they took from the washing line and asked the second offender to call a taxi. She refused. The first offender told them to leave and they did so at between 8.30pm and 9.30pm in a car belonging to a close friend of the offender. They subsequently travelled through the Blackwell Tunnel and round the North Circular Road. The police arrived at the scene and hearing that two blood-stained men had run into the basement of 94 Edwin Street they called at the house but found no relevant clothing or blood. The offenders denied they had seen the man.

It was the prosecution’s case that if the offenders had told the truth at the outset it would have been possible to apprehend the suspects before they crossed the river at the Blackwell Tunnel. In the case of the first offender, on 10 and 11 July 2003, and in the case of the second offender on 24 July 2003, the offenders continued to deny or omitted to mention the presence of the two men.

The first offender was arrested on suspicion of murder and the second offender was arrested on suspicion of conspiracy to murder on 6 August 2003. It was then that the second offender admitted that the two men had run into her house bloodstained and sweating and told her they had had a fight with Kalon. She gave the police the names of the men. The first offender was also interviewed on 6 August. It was suggested to him, by the police, that he was in fact one of the men who had run into the basement of 94 Edwin Street. Initially, he persisted in his denial, but when the second offender’s account was put to him he admitted that he had seen them and had told them to get out.

Both offenders were remanded in custody. The first offender was charged with murder based on identification evidence that proved to be unreliable and on 10 December 2003 no evidence was offered against him. He was, however, granted conditional bail on 15 December 2003 after he had been charged with perverting the course of justice. After the second offender was charged with conspiracy to murder she was remanded in custody from 6 August 2003 until the charge was withdrawn on 19 September 2003. She was then released from custody but immediately re-arrested and charged with perverting the course of justice. She was released on bail on 24 December 2003.

The prosecution accepted that the defendant did not know what happened to Kalon that night and did not know, when the suspects ran into the basement, that Kalon had been murdered. They knew, however, that a violent incident had taken place. This was obvious from the bloody condition of the two men.

The Attorney General contended that the offences were aggravated because the denials were maintained until 6 August 2003. In addition, there was the fact that the offender’s conduct may have assisted the murder suspects to evade justice. There were a number of mitigating features referred to by the Attorney General. There was their plea of guilty at the plea and directions hearing; their good character in the case of the second offender and the fact that the first offender was treated as having a good character and the fact that they had each spent approximately four months in custody charged with serious offences which were later withdrawn. There was also the fact that the second offender had spent four-and-a-half months in custody from 6 August 2003 to 24 December 2003 (of which six weeks was in relation to the offence which was later withdrawn). The time that both offenders spent in custody, on charges which were withdrawn, would not fall to be subtracted from any term of imprisonment imposed in relation to the instant offence.

The offenders were separated from their children and family and community by the remand in custody and thereafter by the restrictive bail conditions. It was also treated as a mitigating fact by the Attorney General that the offenders were motivated by a desire to distance themselves from a violent offence rather than by a wish to assist the suspects escape.

The Attorney General submits that there are no exceptional circumstances that justify the suspension of the sentence.

It is submitted by Mr Horwell, on behalf of the Attorney General, that the fact that the sentences were suspended in itself makes them unduly lenient. He also submitted to us that in any event the sentences were unduly lenient.

Miss Byrnes, on behalf of the first offender and Mr O’Higgins, on behalf of the second offender both contend that there were exceptional circumstances which justified the sentence being suspended. No submissions to the contrary were made on behalf of the prosecution before the judge.

In his sentencing remarks the judge indicated he regarded the case as difficult a sentencing exercise as any judge could face. He referred to the cases that he had considered, some of which were the same cases as are now relied upon by the Attorney General. He said that the offenders had no time to think and they made the wrong decision, not with the intention of thwarting the police enquiries, but with a view to them being distanced from the offence. He then concluded that the right sentence in each case was 12 months’ imprisonment and that there were exceptional circumstances that allowed him to suspend the sentence. He stressed that a judge must be ready to be merciful when justice requires this and he considered that this case required mercy.

He referred to the problem created by the fact that the offenders had been in custody for the offences which were no longer being pursued and in relation to which the offenders would not obtain credit. He then passed the sentence which he clearly regarded as appropriate.

Having considered the authorities on which the Attorney relies, we do not consider that 12 months imprisonment, if it had been an immediate sentence, would have been an unduly lenient sentence or one which could be regarded as inappropriate from the public’s point of view. As Mr Justice Stanley Burnton said in R v Paul Michael Reyworth [2004] 1 Cr. App. R. (Sentencing) 441 in relation to a sentence in a case involving perverting the course of justice, “cases such as the present must depend on their own facts”. If the sentence would not have been unduly lenient or one which should have affronted the public, does the fact that the sentence was suspended alter the position? We do not think it does, at least, if it was lawful to suspend the sentence. It is still a sentence involving two years imprisonment and the sentence, if activated, will be activated in full unless it is unjust to do so (Section 119(2) Powers of Criminal Court (Sentencing) Act 2000).

This is, however, not the end of the story because the Attorney General contends that the sentence was inappropriate in this case because a court is prohibited from dealing with an offender by means of a suspended sentence, “unless it is of the opinion … that the exercise of that part can be justified by the exceptional circumstances of the case” (section 118(4)(b) the Powers of Criminal Courts (Sentencing) Act 2000.

The purpose of this prohibition is to deter courts from passing a suspended sentence of imprisonment in circumstances where, if the sentence were not suspended, the court would not have passed a sentence of imprisonment. This purpose colours what is meant by exceptional circumstances. We agree with the statement of Lord Taylor of Gosforth CJ in R v Okinikan [1993] 1 WLR 173 where he says: “Parliament has given statutory force to the principle that a suspended sentence should not be regarded as a soft option, but should only be imposed in exceptional circumstances. This court cannot lay down a definition of “exceptional circumstances”. They will inevitably depend on the facts of each individual case. However, taken on their own, or in combination, good character, youth and an early plea are not exceptional circumstances justifying a suspended sentence. They are common features of many cases. They may amount to mitigation sufficient to persuade the court that a custodial sentence should not be passed or to reduce its length. The statutory language is clear and unequivocal. In the present case exceptional circumstances were not shown.”

The position is similar to that in relation to mandatory and minimum custodial sentences reconsidered in R v Offen [2001] 1 WLR 253. Approaching the issue of what can be exceptional circumstances, taking into account the purpose of the section, the conclusion that we have come to, is that the judge was entitled to form the opinion that exceptional circumstances existed here. The exceptional circumstances would be the fact that the offenders have already spent time in custody in relation to even more serious offences for which they would not be entitled to credit if the sentence were either not suspended or suspended and activated.

The points with which we have dealt with so far are technical. Reviewing the sentence, ignoring the technicalities, we have come to the conclusion that the sentence which was imposed on each of the offenders can be justified as being within the limits of his discretion. Accordingly, in these cases we also make no order.

Regard has also to be paid to the judgment of Tomlinson J in R v Sara Jane Smith [2002] 1 Cr. App. R. (S) 61 and P258.