Attorney General's Reference (No. 4 of 1989)
| Jurisdiction | England & Wales |
| Judgment Date | 1989 |
| Date | 1989 |
| Year | 1989 |
| Court | Court of Appeal (Criminal Division) |
Crime - Court of Appeal (Criminal Division) - Reference by Attorney-General for review of sentence - Attorney-General referring case where sentence appearing “unduly lenient” - Sentence of 18 months' imprisonment suspended for two years in incest case - Whether powers of court limited to increasing sentence - Whether sentence unduly lenient - Whether leave to refer sentence to be granted for quashing and substitution of three-year probation order -
The Attorney-General applied for leave under section 36(1) of the Criminal Justice Act 1988F1 to refer to the Court of Appeal concurrent sentences totalling 18 months' imprisonment suspended for two years which appeared to him to be unduly lenient passed in the Crown Court on an offender who had pleaded guilty to two counts of indecent assault and two counts of incest with his daughter aged between 13 and 15 years at the material time.
On the application: —
Held, granting the application, that, in the circumstances and the case being exceptional, the sentence had not been shown to be unduly lenient; that, in the light of events since the trial and additional information before the court, the sentence was not to be increased; and that leave to refer the sentence would be granted for it to be quashed and for a probation order for three years with conditions to be substituted (p. 47A–B).
Per curiam. It is implicit in section 36 of the Act of 1988 that the court may only increase sentences which it concludes were unduly lenient. Even where it considers that the sentence was unduly lenient the court has a discretion as to whether to exercise its powers (post, pp. 45H–46A, C).
The following cases are referred to in the judgment:
Attorney-General's Reference (No. 1 of 1989) [
Reg. v. Wilbourne (
No additional cases were cited in argument.
Application for leave to refer sentence.
The Attorney-General, in accordance with section 36(1) of the Criminal Justice Act 1988 and the
“(2) He was sentenced on 18 July 1989 having pleaded guilty to two counts of indecent assault and two counts of incest on his daughter V. (3) He was sentenced to 18 months imprisonment suspended for two years concurrent on each count. (4) The judge was Hodgson J., sitting in the Crown Court at Truro. (5) The following aggravating features were present: (a) acts of indecency started when the child was 13 years old and continued on a regular and progressively more serious basis thereafter for at least two years; the offender progressed from touching the child's vaginal area and inserting his fingers into her vagina to rubbing, kissing and sucking her breasts, exposing his penis whilst interfering with her and making her fondle and suck his penis; (b) acts of incest began when the child was about 15 and continued on a regular basis thereafter for some five to six months, whenever the opportunity presented itself; (c) the child was corrupted by the offender — she was not otherwise sexually experienced or promiscuous; (d) she claimed that she was reluctant to indulge in these practices and told him so; she said that on one occasion he warned that if she told anyone about what was taking place his wife and he would split up and on another occasion that if she screamed her mother would become angry; she claimed that on other occasions he gave her sweets and money in return for oral sex.
“(6) The following mitigating features were present: (a) the offender's plea of guilty, his previous good character and full-time employment; (b)the genuine affection between the child and the offender; (c) the fact that apparently the child and the family had come to terms with the offences and wanted the offender to be reunited with them; (d) the unlikelihood of any re-occurrence of any such offence. (7) The judge was entitled to give full weight to the mitigating factors above. However, it was submitted that having regard to the aggravating features set out above, a suspended sentence was not justified by the circumstances of the case. (8) It is intended to cite the following authorities: (i) Attorney General's Reference (No. 1 of 1989) [
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