Audoire, R v

Sentencing guidelines remain guidelines rather than fixed tariffs. A departure may be justified by the particular circumstances of repeat sexual offending.

In assessing a determinate sentence, the court may balance the gravity of the offences against the need to protect the public. A high assessed risk of repetition, concern about escalation, offending while on bail, and separate incidents may justify consecutive sentences. The resulting total sentence will not be disturbed unless it is manifestly excessive or wrong in principle.

The applicant sought leave to appeal against sentences imposed at Leicester Crown Court on 13 February 2008. He had been committed for sentence for one exposure offence and had pleaded guilty to three further exposure counts and a section 41 offence arising from separate incidents in 2007.

The sentencing judge imposed terms of eight months’ imprisonment. The terms for two counts were concurrent, but the remaining terms were consecutive, producing a total of 24 months’ imprisonment. Psychiatric and pre-sentence reports assessed the applicant as presenting a very high risk of similar offending and identified concern that he might commit a serious sexual offence.

The application contended that the total was excessive, failed to reflect the guilty pleas and totality, and departed unjustifiably from the applicable sentencing guidelines.

1. The application for leave to appeal was refused. The total sentence of 24 months’ imprisonment was neither manifestly excessive nor wrong in principle.

2. The sentencing judge was entitled to treat the applicant as a repeat offender. His earlier convictions involved comparable conduct, and the current offences occurred on three separate occasions. Each was also committed while he was on bail for another actual or alleged offence.

3. The court endorsed the judge’s assessment that the sentencing exercise required a balance between the gravity of the offences and protection of the public. The psychiatric and pre-sentence reports identified an entrenched pattern of behaviour, no meaningful insight or amenability to treatment, and a very high risk of repetition, with concern about a future serious sexual offence. Those matters justified consecutive terms although the individual terms were not lengthy.

4. The judge had not expressly referred to the Sentencing Guidelines Council’s Definitive Guidelines, but was aware of them. The guidelines permitted departure in particular circumstances. The risk assessment, repeated conduct, offending on bail and the other background circumstances justified the sentence imposed.

5. The court recorded that conviction for an offence listed in Schedule 3 of the Sexual Offences Act 2003 required the applicant to comply with the Part 2 notification requirements for ten years.

• Court of Appeal (Criminal Division) In [2008] EWCA Crim 822, the full court refused the application for leave to appeal against sentence.
• Leicester Crown Court On 13 February 2008, the court imposed a total of 24 months’ imprisonment for exposure offences dealt with following committal and guilty pleas.
• Leicester Magistrates’ Court The applicant was convicted of one exposure offence and committed to the Crown Court for sentence. A related threatening-behaviour offence resulted in a 12-month conditional discharge.