Gosford-Hall, R v

In sentencing for further sexual assaults committed during the operational period of a suspended sentence order, the total sentence must reflect all material personal mitigation. Exceptional caring responsibilities, significant ill health, and demonstrated progress in addressing alcohol dependency may justify reducing an otherwise unexceptionable custodial total. The court may give effect to that conclusion by making sentences for the new offences concurrent, while leaving an activated suspended sentence consecutive.

The appellant pleaded guilty to two sexual assaults committed in July and August 2007. Both were committed while he was subject to a three-month suspended sentence order for an earlier sexual assault.

At the Crown Court at Southwark, he received consecutive sentences of three months for the new offences. The suspended sentence was activated consecutively, producing a total of nine months’ imprisonment.

He appealed with leave against sentence. The central issue was whether the total sentence was manifestly excessive in light of his personal mitigation, including his progress in remaining alcohol-free and his role as principal carer for his seriously ill wife.

1. Appeal allowed. The total sentence of nine months’ imprisonment was excessive in this unusual case. A total of six months properly reflected the justice of the case.

2. The offending was serious. The appellant had repeatedly committed sexual offences against female strangers when intoxicated, had failed to respond to earlier non-custodial sentences, and was assessed as presenting a high risk of reoffending when drinking. Absent the unusual mitigating circumstances, a nine-month total would have been unexceptionable.

3. However, the court gave substantial weight to the appellant’s personal mitigation. He had remained alcohol-free since his arrest, attended relevant courses, and made excellent progress in addressing the causes of his offending. His wife’s serious health conditions and his long-standing role as her principal carer were particularly important. His own health problems also carried some, though lesser, weight.

4. The reduction was achieved by making the two three-month sentences for the new offences concurrent rather than consecutive. The three-month suspended sentence, activated because of the new offences, remained consecutive. The resulting custodial total was therefore six months.

5. The alteration in sentence length affected the notification consequence automatically; no specific order was required. Any unaffected matter for which no separate penalty had been imposed remained unchanged.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and reduced the total term from nine to six months’ imprisonment by making the new-offence sentences concurrent: [2008] EWCA Crim 1264.

• Crown Court at Southwark: On 7 March 2008, imposed two consecutive three-month sentences for the new sexual assaults and activated a three-month suspended sentence consecutively, making nine months in total.