The Attorney-General has referred the 15 month sentence imposed on Stuart Hall for 14 indecent assault offences to the Court of Appeal as he considers it to be unduly lenient.
An Attorney General’s Reference is a prosecution appeal against sentence, where the prosecution contend the sentence should be increased. A fact sheet explaining AGs References can be found here.
The Court of Appeal is only able to interfere with a sentence if it is “unduly lenient”.
A good statement of this if from AG Ref (No 4 of 1989) where it was said that ”A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate … However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”
The starting point is the sentencing remarks, which are here. They are worth reading in full (especially if you are of the view that the sentence was too short).
There were 14 separate offences (relating to 13 separate victims). The ages of the victims were between 9 and 17 years old. The offences vary in seriousness, with the Judge noting that some of them, had they stood in isolation, “is by no means the worst example of sexual abuse of children to come before the Court“
The most serious offences were Counts 6, 15 and 16. Briefly, Count 6 involved a 13 year old girl who had been drinking. Mr Hall accepted touching her breasts and inserting a finger in her vagina. Counts 15 and 16 involved far less serious offending, but also attracted the highest sentence as the girls were so young (10 and 9 respectively).
It should be noted that the offence in Count 6 would today be charged as Assault by Penetration with a maximum sentence of life imprisonment. Given the facts of the offence, the starting point today would be in the region of 5 years (page 29).
The Judge has to look at all the offending taken together, and here decided that the appropriate starting point was a sentence of 20 months. Looking at the history of the matter, the Judge gave credit of 25%. This gives the total sentence of 15 months.
The sentencing of historic sex offences is difficult.
Here are some basic principles from the guideline case on sentencing historic sexual offences, R v H 2012 2 Cr App R (S) 21:
1) The offence of which the defendant is convicted and the sentencing parameters (in particular, the maximum available sentence) applicable to that offence are governed not by the law at the date of sentence, but by the law in force at the time when the criminal conduct occurred.
2) Article 7(1) of the European Convention of Human Rights prohibits the imposition of a heavier penalty than one “applicable” at the time when the offence was committed.
3) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in (2013) what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed.
4) Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.
5) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability.
Will it be increased?
Who knows? The more sceptical of you out there may consider that there is a political element to this referral (no one likes sex offenders. The proposition that they should be locked up for longer is bound to get near universal support. An easy bit of PR for the AG and government.)
My view is that the sentence isn’t unduly lenient.
It is by no means harsh and were Hall sentenced today, he would receive something in the order of 5 years. It may a little on the lenient side, but the test is whether it is unduly lenient and I don’t think, weighing up all the factors – including Hall’s age and public humiliation – that 15 months needs to be increased.
Having said that, the Court of Appeal can be an unpredictable beast. I hope that political pressure would not come into such a decision, but now that the AG has referred the sentence, it may be that the Court of Appeal increase the sentence slightly to assuage any criticism that could be levied at ‘bonkers judges letting off paedos’.
The controversial bit
One might ask whether there is any point in locking him up at all. Does he pose a risk, considering the fact he has not offended since 1986? He will never work with children again, his reputation is ruined and the whole country knows him to be a predatory sex offender. He is 83 years of age and has some health complications. Is it likely that he will reoffend?
If no, then why not punish him in other ways? A community order, a tag, a fine are all cheaper ways of punishing him. Are they suitable?