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February 23, 2021

I can remember when a reference to the Attorney General on the grounds that a sentence was unduly lenient was a rare event. Now the situation has changed so much that it appears that every sentence that someone dislikes has become fair game.

One reason for this is the speed at which social media allows the man on the Clapham omnibus to immediately tweet his dislike of any sentence he is unhappy with to literally thousands at the press of a button. Another stems from the current fear of ministers that the judiciary has a personal vendetta against them, and is trying to blur the very clear dividing lines of the three branches of state. And finally, the consequence of better-informed victims as a consequence of years of intervention via the CPS Victims Charter, the Code of Practice for Victims of Crime and the Bar/CPS Standard for Communicating with Witnesses, means that they are now aware of their rights in respect of any sentence they are unhappy about.

But, two recent cases have highlighted that the trend may be, or at least should be, changing. McCann, Sinaga and Shah [2020] EWCA Crim 1676 and Long, Bowes and Cole [2020] EWCA Crim 1729 were high-profile cases, however, in each the Court of Appeal not only refused to refer the sentence but also took the opportunity to restate the principles in respect of any reference sought.

McCann and Sinaga were unconnected, prolific rapists sentenced to multiple life sentences with minimum terms of 30 years. The Solicitor General sought leave to refer those sentences on the grounds that they were unduly lenient and that they should have received whole-life tariffs. The Court of Appeal, whilst rejecting that submission, raised the minimum term of each to 40 years.

Both were convicted after trial: Sinaga after four separate trials, such was the scale of his offending. McCann’s offences consisted of seven offences of kidnapping, ten of false imprisonment, seven of rape, one of causing a person to engage in sexual activity without consent, one of attempting to kidnap, three of assault by penetration, one of causing a person to engage in sexual activity without consent, one of rape of a child under 13, three of causing or inciting a child under 13 to engage in sexual activity, one of sexual assault and two of committing an offence with intent to commit a sexual offence.

The aggravating factors relied upon by the sentencing judge were: i) the fact that there were 11 victims; ii) three were children; iii) the offences spanned 15 days; iv) the attacks were sustained, with repeated assaults; v) the use of violence over and above what was required to carry out the assaults; vi) two of the children and one of the adult victims, were attacked in their own homes; vii) some of the victims were subjected to additional humiliation by being forced to perform sexual acts in the presence of each other; viii) one victim was subjected to additional degradation by being forced to drink the offender’s urine. There were no mitigating factors. Unsurprisingly, the sentencing judge described the offending as ‘a campaign of rape, violence and abduction of a kind which I have never seen or heard of before’ and concluded that McCann was very dangerous to people weaker than himself and a ‘classic psychopath’. In terms of whether he should pass a whole-life tariff, the judge bore in mind that his function was to impose the appropriate punishment on the defendant and, when that was served, the Parole Board would ensure the public are protected.

Sinaga was convicted of 136 offences of rape, committed over a period of 2½ years against 44 victims as well as eight offences of attempted rape, two of assault by penetration and six offences of sexual assault. In sentencing him, the judge commented that she was ‘unaware of any other case of sexual offending of this scale and magnitude’ and that the degree of harm and culpability was such that the offences fell within the highest category of the relevant Sentencing Guidelines. Again she was, unsurprisingly, satisfied that the seriousness of the offences was such that a sentence of life imprisonment was justified and, as the judge in McCann had done, considered whether a whole-life sentence should be imposed. She concluded, on the basis of the authorities, that this was a ‘borderline case’ and declined to pass such a sentence. Instead, having arrived at a notional determinate sentence of 60 years, the judge fixed the minimum term to be served at 30 years.

The Court of Appeal, whilst accepting that the offending of both McCann and Sinaga was very serious indeed, confirmed that it did not require either to receive a whole-life tariff. Its decision did not seek to minimise the seriousness of the offending, but reiterated that a whole-life term is the most severe sentence in our jurisdiction and, as such, must be reserved, save exceptionally, either for the most serious cases involving loss of life, or when a substantive plan to murder of similar seriousness is interrupted close to fulfilment. However, although that limb of the reference was rejected, the Court agreed that the alternative submission, that the 30-year minimum terms were significantly too low. Accordingly, the Court stated that though each case was factually different, by reference to the guidelines, they were each one of the most serious cases of their kind and justified a departure from the usual position of fixing the requisite custodial period at half of the determinate term. In the case of both, a custodial period of two thirds was deemed to be necessary, varying the life sentences of each, by substituting minimum terms of 40 years.

I suspect the case of Long, Bowes and Cole needs no introduction, as it involved the manslaughter PC Harper following a botched attempt to steal a quadbike. The publicity surrounding the offences, the trial and sentence was vast and included PC Harper’s widow criticising both the verdict of the jury and the sentence.

The Attorney General jumped on those criticisms, highlighting that the sentences had caused widespread public concern. She then submitted that in relation to Long, his was a very serious case of manslaughter, very close to murder, and that as there is no reliable indication of when Long will cease to pose a risk to the public, the judge should have imposed a life sentence, rather than an extended determinate sentence. She further submitted that his age was not, in the circumstances of this case, a reason not to impose a life sentence. Whilst acknowledging that the judge took a provisional sentence in Long’s case which was at the top of the guideline range, the fact that PC Harper met a dreadful death when acting in the execution of his duty and for the protection of the public, the judge should have reached a provisional sentence outside of that range. Further, if Long’s custodial term was too short, it was submitted, so too were the custodial terms of Bowes and Cole. And although the judge was correct to consider the relevance to culpability of their young ages and their respective learning difficulties, he made excessive reductions on those grounds.

In dealing with those submissions, the judges prefaced their remarks with what they described as a basic but very important point: ‘no one doubts the seriousness of the offending in this case. No one doubts the importance of the fact that the victim was a police officer engaged in performing his duty in the service of the public. No one doubts the gravity of the harm caused, involving as it did not only the death of PC Harper in dreadful circumstances, but also the anguish suffered by his bereaved family. As the judge rightly said, PC Harper’s family have the profound sympathy of the nation. The issues before this court must however be resolved in accordance with the law.’

Crucially, a fact the Attorney General appears to have missed, as the Court explained: ‘the judge had to sentence three young offenders for manslaughter, not for murder. Mere disagreement with his decisions as to the nature and length of the appropriate sentences provides neither a ground for finding the sentencing to have been unduly lenient nor a ground for finding a sentence to have been wrong in principle or manifestly excessive. The essential issue in each of the applications is whether the judge passed a sentence which was outside the range properly open to him in all the circumstances.

Looking at the sentence, the Court confirmed that Long would be in custody for over a decade, subject to licence conditions for the remainder of the 16-year custodial term and, by virtue of the extended sentence, for a further three years after that. They also considered that the judge was, unarguably, entitled to conclude that an extended sentence of such length would provide sufficient protection for the public.

Turning their attention next to the argument that all three sentences were too short, the Court noted: ‘we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline. That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.

That was a scathing rebuke and a reminder that the guidelines are the starting point of any sentence for a reason. Therefore, just as in the cases of McCann and Sinaga, a judge who chooses to sentence outside of those guidelines has to justify that decision; any criticism that a sentence is unduly lenient must include reference to the findings of the sentencing judge in respect of the guideline.

The reason for that is abundantly clear: many victims are naturally unhappy at the sentence passed in their case, but the reality is that in some cases, no sentence could ever reflect the sentence they believe an offender should receive for the harm or loss they have suffered. But the job of the Criminal Justice System isn’t to pander to personal upset, no matter how understandable it maybe, but to ensure that the system operates fairly and transparently for all. And a part of the proper engagement with victims is being realistic about the process from the start, which includes the likely sentence following sentence.

Indeed, in cases where the advocate considers that the sentence may be unduly lenient, or when the victim, witness or another member of the public expresses such a view, the advocate is required under the communication with witness’ standard, to offer an explanation of the unduly lenient sentence process and the option the individual has to refer sentences to the Attorney General. But, such advice should always be based upon careful consideration of the issues rather than feelings engendered in the heat of the moment. It shouldn’t be forgotten that the sentencing guidelines were introduced by Parliament implicitly so that sentences would be fair and consistent, making the Attorney General’s criticism of the judge in Long, for not departing from them, all the more bizarre. Because however embarrassing a rebuke from the Court of Appeal may be for a lawyer, it pales into insignificance against the additional upset caused to PC Harper’s family in the case of Long and the many victims of McCann and Sinaga, of having their hopes of a longer sentence falsely raised.

Sarah Regan