On 25 October 2015, the Daily Mail ran a story about a sex offender who had had his sentence increased after the judge had decided that the sentence imposed originally was too low.
The news report
Reid Barnes, aged 23, met the 14-year-old victim via Facebook. After a degree of contact between the two, he arranged to meet her and they subsequently had sexual intercourse. Barnes was convicted of sexual activity with a child, contrary to s.9 of the Sexual Offences Act 2003.
In September 2015, Barnes was sentenced to 12 months’ imprisonment. However, the Mail reports that the victim’s family “complained the sentence was too lenient” and as a result, Barnes has had his sentence quadrupled.
What actually happened?
As regular readers of the blog will know, there is a procedure for complaining about sentences considered to be “unduly lenient” – the Attorney General can ask for leave to refer a case to the Court of Appeal for reconsideration of the sentence. This is only available in certain cases (e.g. cases triable only in the Crown Court and certain listed offences). The power is available in this case, as s.9 is a listed offence (see here).
Attorney General’s references take time reach the Court of Appeal however, and so in this case, we know that that has not happened.
The slip rule
What appears to have happened is that the sentencing judge has changed his mind about the sentence he imposed, and brought the case back to court. Can he do that? Well yes. Under a procedure known colloquially as “the slip rule” (see s.155 of the PCC(S)A 2000).
The slip rule enables a Crown Court judge to alter a sentence imposed, so long as the variation is made within 56 days. There is also an equivalent power in the magistrates’ court. There are rules about when it is, and is not, permissible to make an alteration.
For example, it is not permissible to increase a sentence purely because the judge has ‘had a rethink’ and decided the original sentence is too low, but it is permissible to alter a sentence where the original sentence was based on mitigation subsequently found to be false.
What is the position in this case?
Well, unfortunately, the news report is not entirely clear. The Mail reported:
“Recorder Eric Elliott QC, at Newcastle Crown Court, said: ‘The case came before me on September 18 and during mitigation on your behalf I was persuaded this case did not merit a sentence on the basis of grooming.
Subsequently it was brought to my attention that it had been the intention of the prosecution to open the case on the basis there had been an element of grooming…This is a case, because of the background and contact you had with the complainant before meeting her, that amounts to a feature which can be described as a significant degree of planning.
You now accept there was a background of flattery and manipulation. Contrary to what I was led to believe previously, there was direct contact between you before the meeting in this city.'”
The judge then increased the sentence to one of four years’ imprisonment.
This suggests both that the original sentence was based on an incorrect/misleading view of the facts but also that there is an element of blame to be placed with the prosecution. In such circumstances, was the variation of sentence permissible?
Unfortunately, due to the lack of facts about the case, it is not possible to say. If Barnes appeals, the argument that there should be a reduction in sentence may well include the suggestion that the factual basis for the original sentence was due, in part, to the prosecution’s error in not opening the case on the basis that there was grooming behaviour prior to the sexual intercourse, and as such, the increase in sentence is not permissible simply because the prosecution screwed up. The counter-argument may well be that this was a case of false mitigation (in that Barnes relied upon the fact that there was no grooming behaviour) and so an increase is permissible.
Until the true course of events (e.g. how the “true” facts came to be known, whether Barnes pleaded guilty on a basis of plea or was convicted etc.) it won’t be possible to say whether Barnes should appeal, and whether or not the variation was lawful.
As for the sentence, it appears that the original sentence of 12 months was imposed on the basis that it fell within Category 1B of the guideline (see p.45) (involving penetration but no “culpability A” factors), with a starting point of 12 months. With the additional element of grooming, which the judge said indicated a significant degree of planning, that took the case into Category 1A, with a starting point of five years. Therefore, strictly applying the guidelines, the new sentence is broadly in line with what one might expect for such an offence. As an aside, using the grooming element to indicate significant planning appears to “double-count” the aggravation.
If I were Barnes, however, I would think about using the issue of the variation in sentence to get leave to appeal, and then, as an additional point, argue the sentence was manifestly excessive. Whether that will be successful or not, remains to be seen.