Clifford, R v

Historic sexual offences are sentenced under the legislative regime and sentencing guidance current at the date of sentence. The court may make measured reference to modern equivalent offences and modern attitudes, but must respect the maximum sentence available for each offence when committed. The resulting total sentence must nevertheless reflect the offender’s overall culpability, harm caused and the totality of multiple offences.

Similar-fact or bad-character evidence cannot aggravate sentence by treating an offender as guilty of distinct uncharged offences. It may, however, rebut unrealistic mitigation. Denials of guilt and inappropriate conduct surrounding a trial may justify withholding mitigation where they show no remorse, but do not ordinarily constitute positive aggravation.

The appellant was convicted at Southwark Crown Court of eight counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. The offences, committed between 1977 and 1984 against four young women, involved grooming, abuse of influence, sexual assaults and penetrative sexual activity. He received consecutive and concurrent terms totalling eight years’ imprisonment.

He appealed against sentence. He challenged the use of modern sentencing standards for historic offences, the structure of the consecutive sentences, the treatment of bad-character evidence, and the judge’s treatment of his conduct before, during and after trial. The central issue was whether, after excluding any sentencing errors, the total sentence was manifestly excessive.

1. Appeal dismissed. Leave was granted, but the total sentence of eight years was just and proportionate when assessed afresh without the matters wrongly treated as aggravating.

2. The court followed the approach in R v H & Others (2012) 2 Cr App R (S) 21. Historic offences are sentenced at the date of sentence under the then-current legislative regime and by measured reference to applicable definitive guidelines. Modern equivalent offences may illuminate present-day seriousness. This is not a mechanistic exercise. The historic maximum remained an absolute limit on each individual count and materially tempered the modern guideline starting points.

3. There was no breach of Article 7(1) of the European Convention on Human Rights. No count attracted a sentence above its historic maximum. The court could impose consecutive sentences for distinct offences against different victims so as to reflect overall criminality and totality. The judge’s references to conduct now capable of being charged as rape or assault by penetration did not distort the sentencing exercise.

4. The sentencing judge erred in his treatment of bad-character evidence. Applying R v Canavan, Kidd and another [1998] 1 Cr App R (S) 243 and R v Oakes and Other [2013] 2 Cr App R (S) 22, the court held that sentence could not be aggravated by distinct offences for which the appellant had neither been charged nor convicted. Trial evidence could be used to reject unrealistic mitigation, but no such mitigation required rebuttal here. The judge had not made clear that the evidence had no effect on sentence and gave the impression that it aggravated the case.

5. The judge also erred by treating the appellant’s public denials, unverified reports of his conduct in the dock, and post-verdict antics as positive aggravation. Those matters could support the withholding of mitigation for lack of remorse, but did not justify an increased sentence on the facts.

6. Removing those errors did not reduce the proper sentence. The offending involved sustained predation, abuse of influence and trust, several victims, penetrative acts, and grave long-term harm. Eight years properly reflected culpability, harm, aggravation and the limited mitigation available.

• Court of Appeal (Criminal Division) Granted leave to appeal against sentence and dismissed the appeal, holding that the eight-year total sentence remained just and proportionate after correcting identified sentencing errors.
• Southwark Crown Court The appellant was convicted after trial of eight counts of indecent assault and, on 2 May 2014, sentenced to a total of eight years’ imprisonment.