JD, R v

A determinate custodial term should ordinarily reflect the seriousness of the offending and should not be reduced merely because it is consecutive to an extended sentence with a different release regime. The court must then apply totality by asking whether the aggregate period before release can be considered is just and proportionate to all the offending.

An older family member’s sexual offending against a younger family member does not, without more, amount to an abuse of trust for sentencing purposes. Distinct serious offences against different victims may justify consecutive sentences where the aggregate sentence remains proportionate.

The offender was convicted at the Crown Court at Manchester of sexual assaults against one younger cousin over approximately three years and of raping her younger sister. The offences were contrary to the Sexual Offences Act 2003. The Recorder imposed concurrent sentences producing a total of five years’ imprisonment.

The Recorder considered that an eight-year total was otherwise appropriate, but reduced it because the offender was already serving an extended sentence and she understood that the release regime required a reduction. The Solicitor General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether totality or the earlier extended sentence justified reducing the otherwise appropriate consecutive determinate sentence.

1. The reference was allowed. The sentences were unduly lenient. The court substituted a total determinate term of eight years’ imprisonment for the sexual offences, to run consecutively to the extended sentence already being served. The victim surcharge order was quashed.

2. The Recorder had erred in treating the family relationship alone as a breach of trust. R v Forbes [2017] 1 WLR 53 established that sexual offending by an older family member against a younger family member does not, for that reason alone, involve breach of trust. The correct assessment nevertheless supported a sentence of two years for the sustained sexual assaults against NC and six years for the rape of CC.

3. R v Hibbert [2015] 2 Cr App R(S) 15 did not require a reduction in the determinate sentence because it was consecutive to an extended sentence. In general, the release regime is irrelevant when fixing the length of a custodial sentence. The sentencing court must instead fix the proper sentence for the offending and then consider totality.

4. The aggregate period before the offender could be considered for release was eight years. That period was just and proportionate to the total offending, which comprised serious offences committed at different times against different victims. The two-year sentences for counts 1 to 6 were concurrent, but the six-year sentence for rape was consecutive, producing the eight-year total.

• Court of Appeal (Criminal Division). On a reference under section 36 of the Criminal Justice Act 1988, the court granted leave, held the sentence unduly lenient, and substituted an eight-year consecutive determinate term.
• Crown Court at Manchester. On 18 August 2017, following convictions for sexual assaults and rape, the Recorder imposed concurrent sentences totalling five years’ imprisonment.