Sexual offences - Principles of sentencing

R v Hall and other appeals: Court of Appeal, Criminal Division (Lord Judge CJ, Mr Justice Royce, Lady Justice Macur): 24 November 2011

Eight appeals against sentence were heard together because they all raised the issue of the correct approach to sentencing in respect of historic sexual crimes and the extent, if any, to which the court passing sentence should reflect the levels of sentence, which would have been likely to have been imposed if the defendant had been convicted at a trial shortly after the offences were committed and, by contrast, the extent to which events during the long period between the commission of the crime and the sentencing decision might be relevant.

Consideration was given to the legislative provisions on sentencing for sexual offences and to authorities, including R v Millberry and others [2003] 2 All ER 939 (Millberry).

The court ruled: with the exception of Millberry, and the definitive sentencing guideline, the following principles should be treated as guidance: (a) a sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts. (b) Although a sentence has to be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed.

Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply. (c) As always, the particular circumstances in which the offence was committed and its seriousness has to be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender's culpability.

If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features.

(d) In some cases it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However, the circumstances in which the facts come to light varies, and careful judgement of the harm done to the victim is always a critical feature of the sentencing decision.

Simultaneously, equal care needs to be taken to assess the true extent of the defendant's criminality by reference to what he actually did and the circumstances in which he did it. (e) The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.

(g) Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them (see [46]-[47] of the judgment).

R v Bird 9 Cr App Rep (S) 77 considered; R v Dashwood 16 Cr App Rep (S) 733 considered; R v Cuddington 16 Cr App Rep (S) 246 considered; R v Bowers [1999] 2 Cr App Rep (S) 97 considered; R v Millberry, R v Morgan, R v Lackenby [2003] 2 All ER 939 considered; R (on the application of Uttley) v Secretary of State for the Home Department [2004] 4 All ER 1 considered; R v McKendrick [2005] All ER (D) 237 (Mar) considered; R v Patterson [2006] EWCA Crim 148 considered; A-G's Reference (No 39 of 2006); R v J [2006] All ER (D) 323 (May) considered; R v Round; R v Dunn [2009] All ER (D) 158 (Dec) considered; A-G's Reference (No 78 of 2010) [2011] EWCA Crim 1131 considered; R v Hartley [2011] EWCA Crim 1299 considered.

Andrew Howarth (assigned by the Registrar of Criminal Appeals) for H; David Callan (assigned by the Registrar of Criminal Appeals) for F; Jimmy Vakil (assigned by the Registrar of Criminal Appeals) for AW; Patrick Mason (assigned by the Registrar of Criminal Appeals) for PW; Ali Rafati (assigned by the Registrar of Criminal Appeals) for D; Anthony Metzer (assigned by the Registrar of Criminal Appeals) for Stones; Graham Cooke (assigned by the Registrar of Criminal Appeals) for R; John Warrington (assigned by the Registrar of Criminal Appeals) for P; James Price QC (instructed by the Crown Prosecution Service) for the Crown.