Case No 2024/01343/B4 - [2025] EWCA Crim 1370

We will begin by addressing the categorisation issue regarding count 14. We accept that the judge cannot have intended to find that there was an abuse of trust in relation to the offending against C4, when he had just indicated in terms that there was not, strictly speaking, an abuse of trust in relation to C3, his twin brother. For these purposes, there does not appear to have been any material distinction between their circumstances or positions, and, of course, as the trial judge, the judge was in the best place to assess this. As we mentioned earlier, grooming is not a Culpability A factor in respect of the equivalent 2003 Act offence of rape. It does not appear that any of the other Culpability A factors could apply. Accordingly, we accept that Mr Acworth is right in saying that in modern day terms this offence had a starting point of eight years' imprisonment, rather than ten years' imprisonment. However, this is of limited assistance to the appellant in itself, given that there were significant aggravating factors, which would justify an upwards movement, namely: ejaculation, time and location of the offending (at the appellant's home) and the previous conviction.

We mention for completeness, that Mr Acworth accepted in his Sentencing Note prepared for the judge that grooming was a factor present in relation to all five victims. This is a Culpability A factor in respect of the offending against C3 and C5. Accordingly, the fact that there was no abuse of trust as such in those instances, does not impact upon the correctness of the judge's categorisation.

We can dispose of a further point raised in Mr Acworth's skeleton argument at this stage. He accepts that the offending against the stepsons, C1 and C2, involved an abuse of trust. It follows, he says, that to also treat the timing and location of the offending (which took place in the appellant's home) as aggravating factors for these offences would involve double counting. Whilst we see the force of this point, there is, however, no indication that the judge did double count in this way; he did not identify those aspects as aggravating factors in respect of those offences.

We turn to the grounds set out in the Grounds of Appeal. We consider that the judge's sentencing remarks show that he was mindful of the significantly different statutory maxima that applied in relation to the 1956 Act and that he was fully aware of the way in which the guidelines for the equivalent modern day offences should be used. He was also conscious of the need to take account of totality and, as we have described, made certain reductions to reflect this.

The key question for us is whether the sentence imposed was, overall, just and proportionate to the appellant's very serious offending. In terms of the preamble to the current sentencing guidelines that we have already referred to, we note that at paragraph 8 in JH, this court indicated that there need not be a "campaign" as such and that "a case of repeat very serious offending" would justify the imposition of a sentence of 20 years' imprisonment or above. This is such a case. At paragraph 54 in Jones, this court referred to this approach as applying to both rape and sexual assault.

There is no doubt whatsoever that a very substantial sentence was required to reflect the appellant's appalling and sustained offending in this case. However, we accept that there is considerable force in Mr Acworth's submission that offending which merits a sentence after trial of 30 years' imprisonment is of a different order of gravity to the offences for which the appellant was convicted. It is unnecessary to set out in detail the examples that were cited to us. Each case turns on its own fact sensitive circumstances, but we have read each of the authorities that we were referred to and we have found these cases to be of some assistance. In short, they bear out Mr Acworth's submission.

In addition, albeit these are secondary features, because we are primarily concerned with the overall sentence, we accept that there is some force in Mr Acworth's point that counts 9 and 14 each involved only a single offence and, as such, there was insufficient differentiation between the sentences passed for these offences and for the most serious offences in counts 4 and 21, which were both multi incident counts. In addition, there is the categorisation issue in respect of count 14, which we have already identified.

In arriving at our conclusions we have, of course, borne in mind the entirety of the twelve offences committed by the appellant, albeit for the purposes of our analysis we have concentrated on the consecutive sentences that were imposed.

In light of all these considerations, we conclude that a just and proportionate course would be to reduce the overall sentence to one of 25 years' imprisonment. We intend to do this by ordering the sentences of seven years' imprisonment imposed on counts 9 and 14 to run concurrently, rather than consecutively, but otherwise to leave the sentences undisturbed. We emphasise that this course is in no way to diminish the seriousness of the appellant's offending towards C2 and C4. We fully acknowledge the severe and lasting impact that the offending has had upon them.

The effect of us taking this course is that the appellant will serve a standard determinate sentence of seven years' imprisonment and consecutive to that a Special Custodial Sentence for an offender of particular concern of 18 years, comprising a custodial term of 16 years and a further licence period of two years. We allow the appeal on count 1 to this extent.

Given that the appellant is an offender of particular concern, his eligibility for release on counts 4 and 21 is governed by section 244A of the Criminal Justice Act 2003 ("CJA 2003"). Section 244A(2) provides that where a prisoner is serving a sentence imposed under section 278 of the Sentencing Act 2020, the Secretary of State must refer the prisoner's case to the Parole Board as soon as he has served the "requisite custodial period". Section 244A(6)(aa) defines the "requisite custodial period" as being two-thirds of the appropriate custodial term for those sentenced after 28 June 2022. Where consecutive sentences are imposed, the Secretary of State is not required to refer the case to the Parole Board until the prisoner has served the aggregate of the length of the minimum custodial periods in each of the terms: see section 264(2D) of the CJA 2003.

Accordingly, the appellant will be referred to the Parole Board to consider his release, once he has served the aggregate of the custodial elements of the standard determinate sentence and the Special Custodial Sentences for offenders of particular concern.

This will be: (1) 50% of the determinate sentence of seven years that we have indicated. The reduction from 50% to 40% in the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024, SI 2024/844 at paragraph 3(2) does not apply to the offences listed in the Schedule to the Order (see paragraph 3(6)) and that Schedule includes offences under the Sexual Offences Act 1956 and Indecency with Children Act 1960; and (2) 66% of the aggregate custodial terms that remain undisturbed in respect of counts 4 and 21.

As the judge explained in his Sentencing Remarks, the appellant will then be subject to the additional licence period of two years in the community on conditional licence and subject to supervision. The appellant must abide by the conditions of his release or be liable to serve the full sentence in custody.

Lastly, we will grant a representation order in respect of count 1, as we understand that previously the representation order did not extend beyond counts 5 and 6.