Reference by Her Majesty's Attorney General for Northern Ireland

Factual and Procedural Background

On 4 March 2002, the Offender pleaded guilty at Antrim Crown Court to one count of indecent assault on a male, contrary to section 62 of the Offences Against the Person Act 1861. The offender had initially pleaded not guilty on arraignment. The court adjourned for a pre-sentence report and subsequently deferred sentencing on 13 May 2002 for six months under Article 3 of the Criminal Justice (Northern Ireland) Order 1996, conditioned on the offender attending a voluntary programme for the prevention of sexual abuse. The Attorney General sought leave to refer the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. The offender’s counsel contested the appropriateness of leave and the leniency of the sentence. This judgment addresses both issues.

On 5 October 2001, the offender stopped his car in a rural village and offered a lift to the 13-year-old male victim, who initially refused but later accepted. The offender engaged the victim in conversation, showed him a pornographic magazine, and subsequently drove to a remote laneway. There, the offender committed a protracted indecent assault involving oral contact and forced physical acts causing injury to the victim. The victim was later found distressed by a passerby who reported the incident, enabling police to trace the offender. The offender admitted some allegations but initially attempted to blame the victim before pleading guilty.

The victim suffered significant psychological trauma, including anger, anxiety, and behavioural problems, though prognosis with family support was cautiously optimistic. The offender, aged 62, had prior convictions long ago, a stable employment history, and was assessed by a forensic psychiatrist who found him to have deviant sexual attraction to young boys, with inappropriate attitudes and a risk of reoffending if untreated. The offender expressed remorse and willingness to engage in treatment.

The sentencing judge recognized the offence’s seriousness but considered it at the lower end of custodial sentences. Various sentencing options were considered, including custody, probation with treatment, or deferral of sentence to allow voluntary treatment. The judge deferred sentence for six months, requiring attendance at a sexual abuse prevention programme, made a confiscation order on the offender’s car, and placed him on the sex offenders’ register.

The Attorney General summarized aggravating factors including the victim’s youth and vulnerability, predatory conduct, abhorrent nature of the assault, persistence, injury, victim distress, and initial offender blame-shifting. Mitigating factors included the offender’s eventual guilty plea, remorse, clear record for 30 years, and suitability for treatment. The Attorney General contended the sentence was excessively lenient, failing to reflect the offence’s gravity, deterrence needs, protection of vulnerable persons, and public confidence in sentencing.

Counsel for the offender argued the reference was premature, as the judge had not committed to suspending sentence and could impose a custodial sentence of 18 months, which would not be unduly lenient. They highlighted mitigating features such as the offender’s own history of sexual abuse, lack of similar offences, absence of violence, and stable life.

Legal Issues Presented

1. Whether leave should be granted to the Attorney General to refer the deferred sentence as unduly lenient under section 36 of the Criminal Justice Act 1988.
2. Whether the sentence deferred under Article 3 of the Criminal Justice (Northern Ireland) Order 1996 constitutes a "sentence" for the purposes of referral.
3. Whether the sentence imposed was unduly lenient having regard to the seriousness of the offence and relevant sentencing principles.
4. The appropriate sentence to be imposed if the original sentence is found unduly lenient.

Arguments of the Parties

Attorney General's Arguments

• The sentence was excessively lenient and did not reflect the gravity of the offence or the need for deterrence.
• The sentence failed to protect vulnerable members of society and maintain public confidence in the justice system.
• Previous case law emphasized the necessity to mark the abhorrence of child abuse offences through sentencing, which was not sufficiently reflected in the original sentence.
• Aggravating factors such as the victim’s age, predatory conduct, persistence, injury, and victim impact warranted a more severe sentence.

Offender's Counsel Arguments

• The application for leave to refer the sentence was premature as the judge had not finalized sentencing and retained the option of imposing an immediate custodial sentence.
• An 18-month custodial sentence, if imposed, would not be unduly lenient.
• Mitigating factors included the offender’s guilty plea, remorse, lack of relevant prior convictions, the offender’s history of childhood sexual abuse, absence of violence, and stable employment.
• Publicity and abuse suffered by the offender and family were also noted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v L [1996] NIJB 1; [1999] 1 WLR 479	Confirmed that a deferred sentence constitutes a "sentence" or order made on conviction, subject to Attorney General's reference.	Applied to confirm that the deferred sentence under Article 3 of the 1996 Order can be referred as unduly lenient.
Attorney General's Reference (No 3 of 2001) (2002, unreported)	Emphasized the need for sentencing to mark public abhorrence of child abuse offences.	Referenced to support the argument that the original sentence was too lenient given the offence’s gravity.
Attorney General's Reference (No 2 of 2001) [2002] NIJB 117	Stated the prime function of criminal justice to impose appropriate punishment on those attacking vulnerable members of society to deter others.	Used to underline the importance of deterrence and protection of vulnerable victims in sentencing.
Attorney General's Reference (No 4 of 1989) (1989) 11 Cr App R (S) 517	Set out the standard for determining when a sentence is unduly lenient and the Court of Appeal’s discretion.	Guided the court’s analysis of whether the sentence fell outside the reasonable range.
R v Williams [1982] 3 All ER 1092	Confirmed that orders made on conviction, including binding over orders, fall within the definition of "sentence" for appeal purposes.	Supported the interpretation that deferred sentences are appealable as sentences.
Attorney General's Reference (No 22 of 1992) [1994] 1 All ER 105	Held that deferment of sentence constitutes a "sentence" for purposes of Attorney General's reference.	Confirmed the court’s jurisdiction to consider references against deferred sentences.
R v McGowan [2000] NIJB 305	Discussed suitability of custody probation orders under Article 24 and 26 of the 1996 Order for sexual offences.	Considered in sentencing options and ultimate decision on appropriate order.
Reg. v. George [1984] 1 WLR 1082	Clarified conditions attached to deferred sentences and their practical effect.	Referenced to explain the nature of deferred sentences and the expectations of compliance.

Court's Reasoning and Analysis

The court first confirmed the procedural propriety of allowing an Attorney General's reference against a deferred sentence under Article 3 of the 1996 Order, relying on statutory definitions and authoritative case law establishing that a deferred sentence constitutes a "sentence" or order made on conviction. This included detailed consideration of the statutory framework in the Criminal Justice Act 1988 and Criminal Appeal Acts, as well as relevant Northern Ireland legislation.

The court rejected the offender’s argument that the reference was premature, explaining that the deferred sentence effectively committed the court to a sentencing strategy contingent on the offender’s compliance with treatment conditions. The judge’s reserved power to impose immediate custody was conditional and did not preclude the court’s current jurisdiction.

In assessing whether the sentence was unduly lenient, the court applied the established legal test that a sentence is unduly lenient if it falls outside the range of sentences a reasonable judge could impose considering all relevant factors. The court emphasized that sentencing is an art requiring balancing personal mitigation against public interest factors such as deterrence and protection of vulnerable victims.

The court found that the sentencing judge had placed disproportionate weight on the offender’s rehabilitative needs while insufficiently addressing the gravity of the offence, the need for deterrence, and the public’s revulsion towards child sexual abuse. The court disagreed with the view that detection alone serves deterrence better than punishment.

Given the serious and repellent nature of the offence, the court concluded that an immediate custodial sentence of approximately three years was appropriate. It considered but ultimately rejected a custody probation order in favour of a straightforward custodial sentence with post-release conditions under Article 26 of the 1996 Order, acknowledging that the Secretary of State could impose treatment requirements on licence.

Holding and Implications

The court granted leave to the Attorney General to refer the sentence.

The court held that the original sentence of deferred sentencing with voluntary treatment was unduly lenient.

It substituted the original order with an immediate custodial sentence of 30 months' imprisonment, directing the offender to surrender to custody within 72 hours. The court ordered that Article 26 of the Criminal Justice (Northern Ireland) Order 1996 shall apply upon the offender’s release, enabling post-custodial supervision and potential treatment conditions.

This decision directly affects the parties by increasing the offender’s punishment and reinforcing the principle that serious sexual offences against vulnerable victims warrant immediate custodial sentences to reflect public denunciation and deterrence. The court did not establish new legal precedent but reaffirmed existing principles on the nature of deferred sentences and the criteria for unduly lenient sentences in sexual offence cases.