Larcombe, R v

Sentencing tables for sexual offences must be read with the accompanying general principles and explanatory guidance. The nature of the sexual activity supplies the starting point, but aggravating features may justify movement within or outside the stated range. Repeated predatory assaults on separate adolescent victims, intimidation, a substantial age gap, actual distress and the likelihood of further offending may justify a substantial custodial sentence. However, sentence must continue to reflect the primary distinction between assaults involving contact with a victim’s clothed body and those involving naked-body contact.

Following a trial at Southwark Crown Court, the appellant was convicted of two sexual assaults on male teenagers, contrary to section 3 of the Sexual Offences Act 2003. The assaults occurred on separate train journeys and involved manual contact over the victims’ clothing. He received concurrent sentences of two and a half years’ imprisonment.

With the single judge’s permission, the appellant appealed sentence. He contended that the sentences departed substantially from the applicable sentencing guideline and that the judge had relied on unproved matters when assessing risk. The issue was whether the aggravating features justified the sentences imposed.

1. Appeal allowed to a limited extent. The concurrent sentences of two and a half years were excessive. They were replaced by concurrent sentences of two years’ imprisonment on each count.
2. The sentencing judge was entitled to treat the offences as substantially more serious than isolated incidents of the same physical acts. The appellant had targeted two separate teenage boys on occasions months apart. His conduct escalated, was intimidating, occurred where the victims were relatively isolated, and caused immediate fear and distress. The age gap, the appellant’s expressed sexual interest in boys, and his continued denial of the offences also supported the conclusion that further offending was likely unless restrained.
3. The sentencing tables in the Definitive Guideline under the Sexual Offences Act 2003 were not of limited relevance. They had to be read with the accompanying principles. A court must select the description most closely matching the offence, use its starting point, and then adjust for aggravating and mitigating factors. The range may be exceeded where the particular circumstances justify it.
4. The second offence, involving manual contact with the victim’s genitalia over clothing, carried a 12-month custodial starting point. The combined and repeated offending justified a starting point significantly above that figure and required immediate custody. Nevertheless, the guideline treated contact with a victim’s naked body as materially more serious. The sentence had to preserve that distinction. On the facts, two years’ imprisonment was the upper limit of the acceptable range.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to a limited extent and substituted concurrent sentences of two years’ imprisonment: [2008] EWCA Crim 2310.
• Southwark Crown Court: Following trial, convicted the appellant of two offences contrary to section 3 of the Sexual Offences Act 2003 and imposed concurrent sentences of two and a half years’ imprisonment.