The Court of Appeal has ordered a new sentencing hearing after finding that the lengthy suspended portions of the prison terms imposed on Mark Anderson were unduly lenient.
In an ex tempore judgment delivered on 20 April 2015, the court said there was an inadequate basis for suspending two and a half years of each three-year sexual assault sentence and three and a half years of a four-year sentence for attempted defilement. It directed that a resentencing hearing take place as soon as possible. The judgment does not itself set replacement sentences.
Anderson pleaded guilty to three counts of sexual assault and one count of attempted defilement of a child under 15. The offences occurred on two dates in September and October 2010. The child was 13 at the time. The Court of Appeal described the assaults as involving masturbation and said the attempted defilement involved an attempt to place the child’s penis in Anderson’s mouth, which the child resisted.
The sentencing judge imposed concurrent terms of three years for the sexual assaults, suspending two and a half years, and four years for attempted defilement, suspending three and a half years. The Director of Public Prosecutions appealed under section 2 of the Criminal Justice Act 1993, arguing that the sentences were unduly lenient because too much of each term had been suspended.
The DPP relied on the breach of trust, the planning and manipulation described in the judgment, the offences committed in the child’s home, and the impact on the child and family. Anderson’s side argued that the judge had considered the aggravating and mitigating circumstances and that the guilty plea, medical conditions, lack of previous convictions, remorse and engagement with counselling and probation supported the sentence.
The appeal court said the three- and four-year terms themselves were not unduly lenient. It accepted that the judge had considered the gravity of the offences and the aggravating factors. It then assessed whether excessive credit had been given for mitigation through the suspensions.
The court recognised the guilty plea, Anderson’s lack of previous convictions, participation in the Safer Lives programme, medical conditions and difficult upbringing as mitigating matters. But it concluded that they did not adequately justify suspending such a large part of the sentences. It also noted that the sentencing judge had not explained precisely how the lengthy suspensions were justified.
The appeal court therefore found the sentences unduly lenient because of the unwarranted length of suspension and ordered the matter back for resentencing.