[2025] EWCA Crim 1411

It is not suggested in the present case that the Recorder failed to identify particular aggravating features or features going to categorisation. Nor is it suggested that he miscategorised any of the offences when viewed in isolation. When considering the categorisation of count 1, which then translated into his categorisation of counts 2 to 5, he identified significant harm from prolonged offending against a child for whom he was in a position of trust. There was planning and grooming, as was clear from messages sent by the offender to V. This led to him to identify that the appropriate category was category 1A, which had a starting point of 5 years with a category range of 4 to 10 years. He said that if the offender had fought and lost on a single count, his sentence would have been 6 to 7 years:

The Recorder then identified as aggravating features:

As mitigating features the Recorder referred to the character references, the fact of the offender's earlier admissions and the positive prison report. But he concluded that the aggravating features outweighed the mitigating factors by a significant margin, a judgment that is accepted on all sides in this Reference. On this basis, he concluded that after a trial the appropriate aggregate sentence would have been 12 years which reduced to the 8 years he imposed because of the offender's pleas of guilty.

The Solicitor General's essential submission may be shortly stated. Accepting that 6 to 7 years as an adjusted starting point before taking into account aggravating and mitigating features is within the range that was reasonably open to the Recorder, it is submitted that an appropriate sentence on count 1, if viewed in isolation, would have been at least 8 years or so once the aggravating and mitigating features were brought into account. That being so, the Recorder has only increased what would have been appropriate for the single incident count 1 by some 4 years (before reduction for plea) to reflect all the other counts. That, submits the Solicitor General, is unduly lenient. In the Solicitor General's submission, the Recorder should have reached an aggregate sentence of no less than 15 years before applying the reduction for guilty pleas. That could and should have been done by a mixture of concurrent and consecutive sentences, though precisely how it was achieved matters less than the overall result.

In carefully structured submissions for the offender, Mr McNiff, who represented the offender in the court below as he did before us, submits that the sentence was not unduly lenient. The Recorder evidently had in mind the principles he had to apply, including the principle of totality, and he made no clear error of principle in applying them. He points to the relatively small increase being contended for by the Solicitor General from 12 to 15 years before reduction for guilty plea and submits that the disparity falls within the scope of reasonable disagreement rather than being an error that requires this Court to intervene.

We are in no doubt at all that this aggregate sentence was not merely lenient but unduly lenient. We can accept that count 1, if viewed in isolation, justified an adjusted starting point of 6 to 7 years before taking into account aggravating and mitigating features though we would find it difficult or impossible to go significantly below 7 years at that stage because of the gravity of both the culpability and harm identified by the Recorder. As the Recorder recognised, that meant that there needed to be an upward adjustment once aggravating and mitigating features (other than reduction for plea) were taken into account. In our judgment, an appropriate sentence, if viewed on its own and before reducing for guilty plea, was not less than 8 years. However, count 1 did not stand on its own. It charged one incident out of more than 30 overall, and it was one incident involving penetrating V's vagina or mouth out of 29. However we look at the case, the suggestion that an increase of only 50 per cent or 4 years is sufficient to reflect the gross, frequent, persistent, serious and prolonged course of abuse represented by counts 2 to 7 seems to us, with all due respect to Mr McNiff and the Recorder, to be quite inadequate.

In our judgment, the Solicitor General’s submission that an aggregate sentence of 15 years was the least that could properly be imposed is entirely justified. We would go further and say that, in our judgment, the Recorder could have gone beyond 15 years before reduction for plea without any fear of imposing a sentence that could be described as excessive. This 18 months was, as we have said, a chapter of gross, frequent, persistent, serious and prolonged abuse by the offender of a child, who should have been able to trust him to care for her. That is not reflected in the sentence of 8 years that the Recorder passed.

We therefore accede to the Solicitor General's submission that an appropriate aggregate sentence should have been at least 10 years. We acknowledge that the maximum sentence on count 1 is one of 14 years. However, we are able to achieve what we consider to be the just and correct outcome by quashing the sentence passed by the Recorder on count 1 and substituting a sentence of 10 years. We make clear that in adopting this course, we are looking at the substance of the offending as a whole without entering into a debate about whether it would have been better to take a different count as the lead count. Similarly, while we recognise that the same result could have been achieved by a combination of concurrent and consecutive sentences, we do not consider that it was wrong in principle to take count 1 as the lead count and, having explained what we are doing, to reflect the aggregate assessment of the offender's criminality on count 1, leaving the sentences on the other counts unchanged and concurrent.

The Registrar has drawn our attention to the fact that with the encouragement of prosecuting counsel, the Recorder said that the offender would be released after serving two-thirds of the sentence he had passed. We think that this is wrong. Section 244ZA of the Criminal Justice Act 2003 does not apply because offences contrary to sections 9 and 10 of the Sexual Offences Act cannot attract a sentence of life imprisonment. Accordingly, the offender will fall to be released once he has served half of his sentence as adjusted above.

Finally, it has been brought to our attention that the amended indictment said that count 5 was contrary to sections 9(1) and 9(2)(i) of the Sexual Offences Act 2003. That was a typographical error and should have said contrary to 9(1) and 9(2)(a) of the Act. There is no need for any formal change to be made as the position is clear and the typographical error is of no substantive importance.

My Lord, there will be no changes to any of the ancillary orders or notification and the like, they will stay the same.

All other orders remain the same.

It was section 10 of the Sexual Offences Act that my Lord referred to.