Read the full judgment text of CAAR 1/2014 on BabelCite. This Court of Appeal judgment was delivered on 12 May 2014 before Yeung Ag. CJHC, Stock VP, Lunn JA.
Criminal law – sexual offences – attempted rape – child victim – sentencing – application for review of sentence by Secretary for Justice – manifestly inadequate sentence – historic or 'cold' case – starting point – aggravating features – double jeopardy – Criminal Law Revision Committee 15th Report on Sexual Offences – whether four years' imprisonment for the attempted rape of a 12-year-old girl, committed in 1993 and tried nearly 20 years later, was manifestly inadequate. The respondent, then aged 21, gained entry to the girl's Tsing Yi flat by posing as a Town Gas meter reader, threatened her with a sharp object, stripped her, fondled her breasts, pressed his erect penis around her vagina and ejaculated in the region of her vagina; no penetration occurred. Identification was made by palm print and DNA match after a 2012 shoplifting arrest. The sentencing judge imposed four years' imprisonment, identifying only one aggravating feature (gaining entry by false pretences). The Court of Appeal held the sentence manifestly inadequate. The Court endorsed the Billam starting point of five years' imprisonment for adult rape without aggravating features, but identified multiple aggravating features drawn from Billam, Millberry and HKSAR v Tsang Chiu Tak: the victim was very young; a weapon or sharp object was used; the offence was carefully planned; violence was used over and above that necessary to commit the offence; the offender gained access by false pretences to the victim's home; and the offender ejaculated unprotected in the region of the vagina. The Court further held that, contrary to the sentencing judge's approach, attempted rape is not necessarily less serious than the full offence, and that the circumstances here were 'as close as one can get to the full offence', warranting a sentence of nine years after trial ignoring delay. Applying the principles for historic or 'cold' cases (per R v Hall, AG's Reference No 37 and others, R v Tutty and the 2014 Sentencing Council guidelines), the Court held that the same starting point applies and that the delay is of limited mitigating weight, although the offender's blameless intervening life has some significance, and assessed the standalone appropriate sentence at eight years' imprisonment. The Court endorsed the double jeopardy approach in AG's reference Nos 14 and 15 of 2006, applying a six-month discount because the substituted sentence was double the original. The application was allowed; the four-year sentence was set aside and a sentence of seven years and six months' imprisonment was substituted.
Legal issues: Whether four years' imprisonment for attempted rape of a 12-year-old was manifestly inadequate · Appropriate starting point and aggregate sentence for the attempted rape · Application of double jeopardy discount on sentence review
Outcome: Application for review of sentence allowed; original four-year sentence set aside and seven years and six months' imprisonment substituted.
Cited by 15 cases · Cites 1 case