Clements, R v

Where sentencing guidelines address a single offence, a sentencing judge may properly select a higher notional starting point to reflect multiple serious offences. The judge must give proper credit for a guilty plea and personal mitigation, but an appellate court will not interfere merely because the sentence is stern. It must be shown that the starting point was excessive or that insufficient credit was allowed for the relevant mitigation.

The appellant pleaded guilty in the Crown Court at Northampton to two counts of sexual activity with a person whose mental disorder impeded her choice. The complainant was an elderly residential-home resident with advanced severe dementia.

He received concurrent terms of eight years and six years’ imprisonment, producing a total of eight years. The single judge granted leave to appeal against sentence.

The appeal challenged the sentencing judge’s notional starting point of 12 years and contended that greater credit should have been given for the guilty plea, the evidential difficulties that would otherwise have arisen, the absence of physical injury, and remorse.

1. Appeal dismissed. The court held that the sentencing judge was entitled to treat the Sentencing Guidelines Council material as not providing definitive assistance on the particular facts. Its stated starting point addressed one offence of penetration by a single offender, whereas this case involved two separate offences.

2. The judge had a public duty to reflect the multiplicity of offending. In that context, the notional starting point of 12 years was understandable and unimpeachable. The appellant’s concession that the starting point could properly reflect the two offences was rightly accepted.

3. The court accepted that sentencing had been difficult and that the conduct was shocking. It found that the judge had carefully reflected before sentence and had properly reached a stern but dispassionate result.

4. The further mitigation did not show error. The court could not conclude that insufficient credit had been given for the guilty plea, the likely inability of the complainant to give evidence, the absence of evidence of trauma or physical injury, the appellant’s age, or the material relied on as showing remorse and regret.

5. The concurrent sentences of eight years and six years, with a total of eight years’ imprisonment, therefore remained undisturbed.

• Court of Appeal (Criminal Division): By [2009] EWCA Crim 504, dismissed the appeal against the length of the concurrent sentences.
• Crown Court at Northampton: On 4 November 2008, sentenced the appellant after guilty pleas to two counts, imposing concurrent terms of eight years and six years’ imprisonment.