H, R. v (Rev 4)

In sentencing historic sexual offending, the court must apply the sentencing regime and relevant guidelines in force when sentence is passed. The sentence remains subject to the maximum penalty available when the offence was committed. It is unrealistic to reconstruct the sentence likely to have been imposed at that earlier date.

The court must assess present culpability and harm, including enduring harm to the victim. Delay, the offender’s age and maturity at the time, later good character, continuing offending, and early admissions may all affect sentence. Release arrangements should ordinarily be left out of account. Later convictions may aggravate seriousness where it is reasonable to treat them as relevant under Criminal Justice Act 2003, section 143(2).

Eight linked Crown appeals concerned sentences for historic sexual offences, committed between the 1960s and 1990s but prosecuted many years later. The court granted leave because earlier sentencing decisions disclosed inconsistent approaches to the relevance of current sentencing policy, the maximum sentence at the date of offending, delay, and an offender’s subsequent life.

Most appellants challenged their sentences as excessive. One appeal concerned a life sentence imposed where the historic statutory maximum for attempted rape was seven years. Another raised whether later convictions could aggravate the seriousness of an earlier offence. The common issue was the correct sentencing approach in historic or cold cases.

1. Disposition. The appeals of Philip Walker and P were allowed. The remaining appeals, including Robertson’s, were dismissed.

2. Sentence is imposed under the statutory sentencing regime current at the sentencing hearing. The judge should make measured use of relevant current definitive guidelines. However, an offender may be convicted only of the historic offence charged, and the maximum sentence is that available when it was committed. Applying a later-created offence or increased maximum retrospectively would be unlawful and contrary to Article 7(1) of the European Convention of Human Rights.

3. It is unrealistic to attempt to reconstruct the sentence likely to have been imposed shortly after an historic offence. The principal focus remains the seriousness of the actual conduct, the offender’s culpability, and the harm caused. Delay may matter, as may youth and immaturity at the time, an earlier unpursued admission, later positive good character, continued offending, and evidence of ongoing risk. Early admissions and guilty pleas have particular importance in historic cases.

4. Following R v Round and Others [2009] EWCA Crim. 2667, sentencing courts should ordinarily leave early-release and licence arrangements out of account. Under section 143(2) of the Criminal Justice Act 2003, later convictions may be treated as aggravating when reasonably relevant to the historic offence. The provision concerns convictions existing at sentence; it does not require the underlying offences to pre-date the current offence.

5. Consecutive terms must not be used merely to compensate for inadequate sentencing powers. They may nevertheless be imposed for offences committed close together where careful examination shows distinct and independent criminal incidents, each requiring separate punishment.

6. Philip Walker’s aggregate sentence was reduced from 54 months to three years because the offending, though prolonged and involving abuse of trust, was intermittent and relatively low-level, and he had pleaded guilty and suffered from cancer. P’s life sentence for attempted rape was unlawful because the historic maximum was seven years. It was quashed and replaced by seven years for attempted rape, consecutive to two years for the separate indecent assault.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 2753, the court issued consolidated guidance on historic-offence sentencing. It allowed the appeals of Philip Walker and P, and dismissed the other six appeals.
• Crown Court: The respondents had been convicted and sentenced in separate Crown Court proceedings. P’s sentence had also previously been upheld on the merits before the statutory-maximum error was referred back to the Court of Appeal.