Clarke, R v

Extreme old age, diminished life expectancy and ill health are material mitigating factors because custody may be more onerous for an elderly offender. They remain subject to a limited allowance, after balancing the gravity of the offending, harm to victims and the public interest in appropriate punishment. The assessment must be individual and evidence-based. Statistical assumptions about longevity, or an analogy between age and terminal illness, are not appropriate.

A sentencing court must not tailor a determinate term to predicted early release or the prospect that the offender may die in prison. Where the statutory conditions are met, Criminal Justice Act 2003 section 236A must be applied to historical abolished offences.

The court heard conjoined sentence appeals by Ralph Clarke, aged 101, and Peter Cooper, aged 96. Both had been sentenced for serious historical sexual offending committed when they were substantially younger and not subject to reduced culpability through age or mental disorder.

Clarke was convicted at Birmingham Crown Court of sustained sexual abuse of three children and received an aggregate custodial term of 13 years, with further licence periods. Cooper pleaded guilty to repeated abuse of a child over several years and received a sentence under Criminal Justice Act 2003 section 236A comprising three years’ custody and one year’s licence.

The common issue was the weight to be given to extreme old age, including whether sentence should be adjusted to ensure a reasonable prospect of release after the requisite custodial period. The court also resolved technical errors concerning section 236A sentences.

1. Clarke’s appeal was allowed only to make technical corrections. His challenge to the length of the sentence and to the general approach to extreme old age failed. Cooper’s substantive challenge also failed, although the court amended the form of certain concurrent sentences to comply with section 236A.
2. Old age, including extreme old age, is a material mitigating consideration. The sentencing court must assess the extent to which custody is more onerous for the particular offender. Diminished life expectancy, health and the possibility of death in prison may be relevant. They must, however, be balanced against culpability, harm, the gravity of the offending and the public interest in proportionate punishment. The court reaffirmed the limited-mercy approach in R v Millberry & Others [2003] 2 Cr App R (S) 31.
3. The assessment must be individual. A court should require offender-specific evidence and should not infer life prospects from general statistics, residence or lifestyle. Extreme old age is not equivalent to terminal illness and does not create a separate sentencing category. The prison estate should be assumed capable of making appropriate provision unless firm evidence shows otherwise.
4. The court rejected the argument that a determinate sentence should be fixed by reference to the prospect of serving the custodial period before release. That would conflict with the principle in R v Round and Dunn [2010] 2 Cr App R (S) 45 that sentence should not be calculated by early-release possibilities. Nor could old age justify disregarding the absence of an early guilty plea; doing so would undermine settled plea-credit practice.
5. Section 236A applies where its conditions are established for a historical abolished offence. In Clarke’s case, further section 236A sentences were required on counts where the judge had made findings establishing the relevant modern equivalent. They were not required where it could not be found that the victim had been under 13. The determinate term should precede the consecutive section 236A terms.
6. Clarke’s prolonged and repeated abuse of three children involved high culpability and grave, enduring harm. His age and infirmity had already produced a substantial reduction from the sentence appropriate for a younger offender. The 13-year custodial term was not manifestly excessive. The technical corrections did not increase his effective sentence.

• Court of Appeal (Criminal Division): Leave was granted. The court dismissed Clarke’s challenge to the sentence based on extreme old age, but allowed the appeal to the limited extent of correcting the application and sequencing of Criminal Justice Act 2003 section 236A sentences.
• Crown Court at Birmingham: His Honour Judge Bond sentenced Clarke in December 2016 for historical sexual offences. No citation for the sentencing decision was stated.