[2025] EWCA Crim 1187

THE SENTENCE

The judge decided that the appropriate credit for the late guilty pleas in this case was therefore 20 per cent. No complaint can or is made about that level of credit.

Accordingly, the judge was required to sentence a man now in his mid-60s for serious sexual offences committed when he himself was a teenager over 50 years ago, and who has not committed any further offences as an adult. This was a complex sentencing hearing. Arriving at a just sentence in this case requires consideration of no fewer than six different guidelines issued by the Sentencing Council:

First, the court has to consider the general approach set out in the guidelines for Sentencing Historical Sexual Offences. That involves sentencing the offender in accordance with the current sentencing regime although by law the court's powers are limited to the maximum sentence available at the date of the commission of the offences. Further, when sentencing offences committed before the Sexual Offences Act 2003 came into force, it is necessary to consider what modern-day offences would be committed if the offences were committed on the day of the offender's conviction. The court then has to sentence by "measured reference" to any applicable guidelines for each equivalent offence. Although the court must not exceed the maximum sentence available at the time of the offending the court should not seek to establish the likely sentence that the court would have imposed had the offender been convicted shortly after the date of the offence.

Secondly, the court has to consider the offence specific guidelines issued by the Sentencing Council in respect of those equivalent modern offences. The court is required to consider culpability and harm in accordance with such guidelines. Reverting to the guideline for Sentencing Historical Sexual Offences, the court is also required to consider the circumstances which brought the offending to light. The guideline advises that the passage of time must be considered carefully since it has the potential to aggravate the offending (where, for example, the offender has continued to commit sexual offences or has continued to prevent the victim from reporting the offences) or may mitigate the offending. The absence of any further offences over a long period of time, especially when combined with evidence of good character, may be a mitigating factor. This is subject to the usual caveats with sexual offending that good character and exemplary conduct and not necessarily synonymous with having no other convictions; that the more serious the offence, the less weight can be attributed to this factor; and that previous good character or exemplary conduct that has been used to facilitate the offending should not normally be considered a mitigating factor and may amount to an aggravating factor.

Thirdly, the court has to consider the guideline for Sentencing Children and Young People. The need to consider such guideline is also stressed at paragraph 9 of the guideline for Sentencing Historical Sexual Offences which advises:

"The court should take as its starting point the sentence likely to have been imposed at the time of the offending, and bear in mind the maximum sentence which could then have been imposed on the child offender."

Fourthly, the court is also required to consider the specific guideline for sexual offences committed by children and young people.

Fifthly, as in any case where an offender enters a guilty plea, the court is required to consider the guidelines issued for sentencing offenders who admit their guilt.

Sixthly, upon the judge concluding that the appropriate sentence was 21 months' imprisonment, the judge was required to consider the Imposition Guideline in order to consider whether imprisonment was unavoidable and, if it was, whether the sentence should be suspended.

The judge navigated all of these issues. He referred to the case of R v Ahmed [2023] EWCA Crim 281, in which Lord Burnett CJ stressed that in such cases, and whatever the offender's age at the time of conviction, the court must apply the guidelines on Sentencing Children and Young People and that the sentence should ordinarily be limited to the maximum sentence that would have been available at the time when sentencing someone of the offender's then age.

Accordingly, the judge identified that when the appellant had been 14, as he had been at the earliest point charged in count 2, he could not have been sentenced to Borstal training and that the maximum sentence then available was a 3-month detention centre order.

The offending charged on the remaining counts started when the appellant was 15. At that age, the maximum sentence then available was 2 years’ Borstal training followed by 2 years’ supervision on release. Following Ahmed, the judge noted that that could be properly reflected by a modern sentence of 4 years' imprisonment.

Turning then to the offence specific guidelines, the modern equivalent of the offences on this indictment was sexual assault of a child under 13, an offence that carries a maximum of 14 years' imprisonment compared with the maximum of 10 years available for the indicted offences under the 1956 Act. The judge treated each offence as a category B2 offence within the current guidelines, which indicate a starting point of 2 years' imprisonment with a category range of 1 to 4 years. The judge treated count 8 as the most serious offence since it alleged touching the older nephew's penis under his clothing. Count 4 alleged touching the boy's penis over his clothing while counts 6 and 10 reflected touching the boy's backside over and under his clothing respectively. The judge said that the offending was aggravated by the fact that there were multiple offences against two victims over a significant period of time. Further, the appellant had taken advantage of the position in which he had been placed and had sought to persuade his victims not to report the offences.

The judge identified four mitigating factors. First, the guilty pleas. While of course reflected separately by credit for plea, the judge observed that this factor was particularly significant since it prevented the victims from having to give evidence at trial. Secondly, he stressed the appellant's otherwise good character and the fact that he had led a very industrious and productive life. He described him as a devoted family man and grandfather, and took into account the positive character references before the court. Thirdly, he took account of the appellant's health problems. Fourthly, he accepted that the appellant had himself been abused as a younger boy but observed, as indeed the appellant had volunteered in his written basis of plea, that his own experiences should have given him greater insight into the damage that he was inflicting upon his own nephews.

The judge took count 8 as the lead offence against the older nephew and identified the appropriate sentence after trial to be 2 years' imprisonment which, after credit for the late guilty plea, was reduced to 19 months. The judge imposed concurrent sentences of 12 months' imprisonment on each of counts 4, 6 and 10. The judge then imposed a short consecutive sentence of imprisonment on count 2, to reflect the fact that there was a second victim. The sentence after trial would have been 3 months' imprisonment but the judge reduced that to 2 months after credit for the guilty plea. Rightly, no criticism is made of the fact that this sentence was ordered to run consecutively. Accordingly, the total sentence imposed was 21 months’ imprisonment. The judge said that the offending, albeit committed five decades ago, was so serious that it justified immediate imprisonment.