Hendry, R. v

Factual and Procedural Background

This case concerns a reference by the Director of Public Prosecutions (DPP) challenging as unduly lenient a suspended sentence imposed on the Appellant for historic sexual offences. The Appellant was convicted of three counts of indecent assault on a male contrary to section 62 of the Offences Against the Person Act 1861. The offences occurred approximately 40 years prior at a children’s home in east Belfast, where the Appellant was a deputy manager and the complainant was a vulnerable child in care.

The Appellant was arraigned in March 2020, pleaded not guilty, and was tried by jury in February 2022. The jury convicted him on all counts. Sentencing occurred in June 2022, resulting in concurrent prison terms of 12 months on two counts and two years on the third, all suspended for three years. The DPP sought to challenge both the length of imprisonment and the judge’s finding of exceptional circumstances justifying suspension under Section 36 of the Criminal Justice Act 1988 (as amended).

The Court of Appeal, after hearing submissions and obtaining a supplementary psychiatric report on the Appellant’s physical and mental health, considered whether the sentencing judge was entitled to find exceptional circumstances justifying suspension of sentence.

Legal Issues Presented

1. Whether the sentencing judge was entitled to conclude that there were exceptional circumstances permitting suspension of the custodial sentence imposed on the Appellant for historic indecent assault offences.
2. Whether the effective sentence of two years’ imprisonment suspended for three years was unduly lenient.

Arguments of the Parties

Prosecution's Arguments

• The offences crossed the custody threshold and required deterrent sentences.
• The Appellant’s difficult childhood, advanced age, ill health, and absence of recent offending are common features in such cases and do not amount to exceptional circumstances.
• The judge’s finding of exceptional circumstances was incorrect and the sentence was unduly lenient.

Defence's Arguments

• The Appellant’s harsh and abusive upbringing, combined with extensive medical issues, constituted exceptional circumstances justifying suspension of the custodial sentence.
• Psychiatric evidence supported that immediate custody would have serious adverse effects on the Appellant’s mental health.
• Personal mitigation should be given substantial weight in this case given the Appellant’s background and health.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal carefully considered the sentencing judge’s decision to suspend the custodial sentence on the basis of exceptional circumstances. The court reaffirmed that sexual offences against children generally require custodial sentences for deterrence and that exceptional circumstances permitting suspension must be truly out of the ordinary.

The sentencing judge had the advantage of presiding over the trial, observing the demeanour of the parties, and reviewing detailed reports on the Appellant’s background and health. The judge adopted a holistic approach, considering the Appellant’s harsh and abusive childhood, his advanced age, and significant medical and psychological conditions.

The court found no error in the judge’s application of principles or assessment of the facts. It emphasized that the appellate court must be slow to interfere with the sentencing judge’s discretion unless the judge was clearly wrong. The prosecution did not meet the high threshold of showing the sentence was unduly lenient or that the exceptional circumstances finding was erroneous.

The court also noted that sentencing is an art, not a science, and that leniency, including mercy, may sometimes be justified in exceptional cases. The additional expert psychiatric evidence supported the judge’s conclusion regarding the potential detrimental impact of immediate custody on the Appellant’s mental health.

Holding and Implications

The Court of Appeal granted leave to challenge the sentence but ultimately DISMISSED THE REFERENCE and AFFIRMED THE SENTENCE imposed by the sentencing judge.

The direct effect is that the Appellant’s suspended prison sentence remains in place. The court’s decision underscores the high threshold for overturning sentences on the basis of undue leniency and affirms the deference owed to sentencing judges’ discretion, particularly in complex cases involving historic offences and significant personal mitigation. No new legal precedent was established beyond the application of existing principles.