Jones, R v

Sentencing guidelines should not be applied where their underlying premise does not match the offending before the court. Guidelines directed to sexual activity by care workers which is essentially consensual gave no useful assistance where the activity was plainly non-consensual and caused grave injury.

Sentence must reflect both the gravity of the offending and the offender’s culpability. In reviewing sentence, the Court of Appeal will substitute a lower term where the aggravating features, balanced against good character and relevant personal disadvantages, show that the original sentence was manifestly excessive.

The appellant, a 22-year-old care worker, was convicted by a jury of sexual activity with a person with a mental disorder by a care worker, contrary to section 38(1) of the Sexual Offences Act 2003. The complainant was a 76-year-old care-home resident with severe dementia. She sustained very serious internal injuries requiring emergency surgery.

On 29 July 2008, the Crown Court at Newport imposed nine years’ imprisonment. The judge held that the dangerousness provisions did not apply. The appellant appealed, with leave of the single judge, contending that the sentence was excessive. The central issue was whether nine years’ imprisonment was manifestly excessive.

1. Appeal allowed. The court substituted a sentence of seven years’ imprisonment for the nine-year sentence imposed at Newport Crown Court.

2. The sentencing guidelines discussed below were inapplicable. Their purpose was to address the mischief of care workers engaging in sexual relations with persons for whom they were responsible, and they proceeded on the basis that sexual activity was essentially consensual. The present offending was manifestly non-consensual. The guidelines therefore gave no particular assistance in sentencing.

3. The statutory maximum for the offence under section 38(1) of the Sexual Offences Act 2003 was 14 years’ imprisonment. That gave the sentencing judge sufficient scope to impose an appropriate sentence without resort to guidelines for another offence.

4. The offence had grave aggravating features. The complainant was elderly, severely demented and dependent on the appellant in his capacity as a care worker. The injuries were exceptionally serious and created a risk of permanent injury or death without prompt treatment.

5. Those features had to be balanced against the appellant’s good character and his significant learning difficulties. Properly balancing the seriousness of the offending, the appellant’s culpability and the mitigating personal factors, nine years’ imprisonment was manifestly excessive. Seven years’ imprisonment was the proper sentence.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in [2009] EWCA Crim 237 and substituted seven years’ imprisonment.
• Crown Court at Newport: On 29 July 2008, imposed nine years’ imprisonment following the appellant’s jury conviction.