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McKenna & Sheridan, R. v
Factual and Procedural Background
This opinion concerns a reference brought by the Director of Public Prosecutions ("DPP") under section 36 of the Criminal Justice Act 1988 as amended by section 41 of the Justice (Northern Ireland) Act 2002. The reference relates to sentences imposed by the trial judge on two respondents following convictions for multiple sexual offences against children and related offences.
The offences arose from events on 23 December 2019 involving the two respondents attending a children’s home ("the home"). One respondent is a former resident of the home. At the time, the respondents were adults aged 27 and 23, and the complainants were aged 12 and 15. The first complainant pursued a criminal complaint alleging multiple sexual assaults, while the second complainant did not cooperate with investigations. The police recovered the complainants after reports from the home’s staff, who expressed concerns about the respondents’ interactions with the children. The police found the complainants and respondents intoxicated in a wooded area.
One respondent was convicted after trial on counts including sexual assault by penetration, rape of a child under 13, sexual touching of a child under 16, offering to supply cocaine, and child abduction. He was sentenced to nine years’ imprisonment plus a three-year extended custodial sentence and ancillary orders.
The other respondent pleaded guilty to multiple counts of sexual assault by penetration, rape of a child under 13, and child abduction. He was sentenced to six and a half years’ imprisonment plus a three-year extended custodial sentence and ancillary orders.
The Public Prosecution Service ("PPS") contended that the sentences were unduly lenient, prompting this reference to the Court of Appeal.
Legal Issues Presented
- Whether the sentences imposed on the respondents were unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988 as amended.
- Whether the Court of Appeal should grant leave to increase the sentences.
- The appropriate application of sentencing principles and precedents, including the assessment of aggravating and mitigating factors in cases involving sexual offences against children.
- The proper exercise of judicial discretion in sentencing and the application of extended custodial sentences for public protection.
Arguments of the Parties
Applicant's Arguments
- The sentences imposed were unduly lenient given the gravity of the offending, including the abduction of the complainants and the provision of drugs and alcohol by the respondents.
- The starting point for sentencing should have been higher than that selected by the trial judge, placing the sentences further up the range suggested by the relevant guidelines.
Respondents' Arguments
- The trial judge properly applied the relevant sentencing guidelines, including those established in R v Kubik, and took full account of aggravating and mitigating factors.
- The sentences, while at the lower end of the applicable range, were within the range reasonably open to the judge and did not constitute manifest error.
- Mitigation for one respondent included guilty pleas, low intellectual functioning, mental health difficulties, and a difficult upbringing, justifying a lower sentence.
- The extended custodial sentences imposed appropriately address public protection concerns.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Sharyar Ali [2023] NICA 20 | Nature and threshold for granting leave in references for unduly lenient sentences. | Used to explain the high and exacting threshold for increasing sentences on reference and the principles guiding such decisions. |
| Attorney General’s Reference (No 1 of 1989) [1989] NI 245 | Parameters of unduly lenient sentence references and judicial discretion in increasing sentences. | Guided the court in assessing whether the sentences fell outside the range reasonably open to the trial judge and the exercise of discretion. |
| Attorney General’s Reference Number 4 of 1989 [1990] 1 WLR 41 | Clarification of the scope and limits of references for unduly lenient sentences. | Reinforced the principle that the court cannot increase sentences merely because it would have imposed a harsher sentence. |
| R v Kubik [2016] NICA 3 | Sentencing guidelines for rape offences, including aggravating factors. | Applied by the trial judge and accepted by the Court of Appeal as the appropriate sentencing framework for the offences involving children in this case. |
| R v Hegarty [2022] NICA 55 | Guidance on aggravated rape sentencing and appellate review of sentence appropriateness. | Referenced to illustrate the court’s approach to serious sexual offences and sentencing ranges. |
| Phillips [2018] EWCA Crim 2008, [2019] 1 Cr App R (S) 11 | Principles governing the length and purpose of extended custodial sentences. | Used to guide the court’s consideration of the extended custodial sentence periods imposed for public protection. |
| ARD [2017] EWCA Crim 1882, [2018] 1 Cr App R (S) 23 | Clarification on factors relevant to determining length of extension periods in extended sentences. | Applied to emphasize that extension periods are preventive and proportionate to the risk posed by the offender. |
Court's Reasoning and Analysis
The Court began by reiterating the high threshold for increasing a sentence on a reference for undue leniency, emphasizing that only sentences falling outside the range reasonably open to the trial judge qualify. The court carefully reviewed the trial judge’s application of the R v Kubik guidelines, which provide a starting point of eight years for serious rape offences involving aggravating factors such as multiple offenders and abduction.
The trial judge had increased the sentence to nine years, one year above the starting point, after considering aggravating factors including the complainants’ young ages, their residence in a children’s home, deliberate removal despite staff objections, and the provision of alcohol. The court accepted that the judge also properly considered the dangerousness of the respondents and applied relevant legislative frameworks.
Mitigating factors were acknowledged, particularly for the respondent who pleaded guilty and had low intellectual functioning, mental health issues, and a difficult upbringing. The other respondent’s lack of mitigation and denial of guilt were noted.
The court found no manifest error or legal misapplication by the trial judge. The judge’s sentencing discretion, including the weight assigned to aggravating and mitigating factors, was respected. Although the sentences were at the lower end of the range, they were within the scope of sentences the judge could reasonably impose.
Regarding the extended custodial sentences, the court noted their dual purpose of punishment and public protection. The three-year extension period was consistent with the offenders’ designation as dangerous and the need to manage future risk. The court cited legal authorities confirming that the extension period should be proportionate and focused on rehabilitation and risk reduction.
The court also observed that the children were not removed by force or threats but rather left with the respondents, one of whom was a former resident, which reduced the severity compared to other cases without such connections.
Holding and Implications
The Court refused leave to increase the sentences and dismissed the reference.
The court held that the sentences imposed were not unduly lenient as they fell within the reasonable range available to the trial judge after applying relevant legal principles and sentencing guidelines. The extended custodial sentences imposed adequately addressed public protection concerns.
The effect of this decision is that the original sentences of nine years plus a three-year extended custodial sentence for the first respondent, and six and a half years plus a three-year extended custodial sentence for the second respondent, remain in place. The court did not establish any new precedent but reaffirmed the strict standards governing references for unduly lenient sentences and the deference owed to trial judges’ sentencing discretion.
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