Hartley, R v

An offender must be sentenced only for offences charged and proved. Conviction on specimen counts taken from an alleged wider course of sexual conduct does not establish guilt of further, uncharged incidents. The exception requires the defendant’s explicit assent that the counts are representative and that a guilty verdict determines the whole course.

A count alleging a course of conduct under Rule 14.2(2) of the Criminal Procedure Rules must clearly identify both that course and its period. A sentencing judge may nevertheless assess the evidence bearing on the seriousness of the offences of conviction, provided that the sentence does not punish additional uncharged offences.

The appellant was convicted after trial of two historic sexual offences against an 11- and 12-year-old girl. Each count represented one of two periods of alleged repeated sexual activity, but neither count identified a particular incident or expressly alleged a course of conduct.

The trial judge imposed eight years’ imprisonment on each count. In doing so, the judge treated the convictions as encompassing a relationship and conduct over about two years. The appellant appealed against sentence, contending that this approach contravened R v Canavan [1998] 1 Cr.App.R 79. The central issue was whether the judge had sentenced him for uncharged additional offences, and, if so, the proper sentence for the two offences of conviction.

1. Appeal allowed. The judge erred by sentencing the appellant on the basis that the two counts encompassed a course of conduct over two years. Under R v Canavan [1998] 1 Cr.App.R 79, a defendant may be sentenced only for offences charged and of which he has been convicted. Specimen counts do not, without more, amount to convictions for further uncharged incidents.

2. The Crown’s proposed exception did not apply. It is permissible to treat representative counts and a verdict as determining an entire course only where the defendant has explicitly accepted that basis. No such assent had been given.

3. Rule 14.2(2) of the Criminal Procedure Rules permits a count to allege more than one incident where the incidents together constitute a course of conduct by reference to time, place or purpose. These counts did not do so. An indictment using that procedure must make clear both that a course of conduct is charged and the period alleged.

4. The error did not prevent the sentencing judge from assessing the seriousness of each offence of conviction on the evidence heard at trial. The judge could take account of features such as seduction and grooming, exploitation of the child’s emotions, the resumption of conduct after warning, the risk of pregnancy, and other circumstances of the proved offences. Those matters did not amount to sentencing for further offences.

5. Sentencing afresh, the court held that six years’ imprisonment was appropriate for the two offences. The sentences of eight years were quashed and replaced with a sentence of six years.

6. The court also gave non-exhaustive guidance on drafting indictments in allegations of repeated sexual conduct. Prosecutors should frame sufficient, identifiable counts to permit realistic sentencing while preserving the jury’s role. The limited procedures in sections 17 to 19 of the Domestic Violence (Crime and Victims) Act 2004 did not provide a general solution.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted six years’ imprisonment for the sentences of eight years.
• Trial court: Convicted the appellant after trial on two counts of historic sexual abuse and imposed eight years’ imprisonment on each count. The trial court is not otherwise identified in the judgment.