Newton, R. v

For an offence under section 62(1) of the Sexual Offences Act 2003, the sentence should be commensurate with the preliminary offence actually committed, with an enhancement for the intended sexual offence. A substantial custodial sentence and an extended licence may be justified where dangerousness is established.

However, the sentence must reflect the conduct proved. Where the offending was neither a completed nor attempted rape, the detention was brief, and the violence caused no serious physical injury, an 18-year term after trial was manifestly excessive despite the grave features of the case.

The appellant pleaded guilty in the Crown Court at Carlisle to five offences arising from an incident in which he detained, filmed and assaulted a nine-year-old child in public lavatories, intending to sexually assault her by digital penetration. He also committed offences in breach of a Sexual Offences Prevention Order and during the operational period of a suspended sentence.

On 6 March 2015, HHJ Batty QC imposed an extended sentence of 12 years’ custody with an eight-year extension period. The court activated six months of the suspended sentence concurrently. The appellant appealed against sentence with leave of the Single Judge. The issue was whether the custodial term and extended licence were wrong in principle or manifestly excessive.

1. The appeal was allowed in part. The court upheld the decision to impose an extended sentence and the eight-year extension period, but reduced the custodial term from 12 years to 10 years.

2. The judge had been entitled to find the appellant dangerous. The psychiatric evidence identified a high risk of repetition, and the appellant’s history, breach of a suspended sentence and breach of the Sexual Offences Prevention Order supported a very lengthy custodial sentence.

3. For the section 62(1) offence under the Sexual Offences Act 2003, the applicable guideline required a sentence commensurate with the preliminary offence actually committed, enhanced to reflect the intended sexual offence. The preliminary offence was false imprisonment. Its seriousness was increased by the child’s vulnerability, the covert filming, forced entry into the cubicle, exposure, threats, intended digital penetration, and violence.

4. Nevertheless, an 18-year term after trial was manifestly excessive. The conduct was not a completed or attempted rape. The detention was not prolonged because it occurred in a public place, and the violence, although gratuitous and frightening, caused no serious physical injury. The sentencing judge had also recognised that this was not the worst case in the category.

5. The appropriate term after trial was 15 years. Giving credit for the early guilty plea, the court substituted a custodial term of 10 years. The maximum eight-year licence period was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): Allowed the appeal to the limited extent of substituting a 10-year custodial term; upheld the extended sentence and eight-year extension period.
• Crown Court at Carlisle: On 6 March 2015, HHJ Batty QC imposed an extended sentence of 12 years’ custody with an eight-year extension period, with six months of an activated suspended sentence concurrent.