Yarlett, R v

For a category 1A sexual assault, aggravating features and additional concurrent criminality may justify a starting point at the top of the applicable guideline range. A court may then reduce the resulting term to achieve totality with an existing sentence; totality does not require concurrency.

A late guilty plea may properly receive limited credit where the offender previously declined an opportunity to plead to a lesser offence. Before imposing an extended sentence, the sentencing judge should obtain a pre-sentence report and give the parties an opportunity to address dangerousness. A procedural error will not require alteration of the sentence where reliable later material and the offending establish a continuing risk requiring public protection.

The appellant pleaded guilty at Sheffield Crown Court to sexual assault contrary to section 3 of the Sexual Offences Act 2003 and assault occasioning actual bodily harm. The offences arose from a sustained and violent attack on CW, an associate of the appellant, involving a broken broom handle. The appellant was already serving a sentence of four years and eight months’ imprisonment for burglary offences.

On 23 March 2017, the Crown Court imposed a consecutive extended sentence of six years for the sexual assault, comprising five years’ custody and one year’s extended licence, under section 226A of the Criminal Justice Act 2003. The appellant appealed against sentence, challenging totality, dangerousness, credit for his pleas, and the guideline starting point.

1. Appeal dismissed. The court upheld the five-year custodial term and the extended sentence.

2. The judge was entitled to focus sentencing upon the sexual assault, the more serious count, and to reflect the additional criminality of the assault occasioning actual bodily harm within that sentence. The sexual assault was correctly categorised as category 1 harm and category A culpability under the applicable guideline. The victim had suffered violence and psychological harm, and the offending was motivated by hostility towards his sexual orientation or presumed sexual orientation. The guideline starting point was four years, within a range of three to seven years.

3. The judge was entitled to adopt a seven-year starting point. The victim was unconscious during part of the attack, a weapon was used, the appellant offended while on licence, and there was substantial additional violence. Although section 146 of the Criminal Justice Act 2003 requires sexual hostility to be treated as an aggravating factor, the applicable guideline already incorporated that feature. There was therefore no double counting.

4. Ten per cent credit for the guilty pleas was proper. The appellant had not previously offered pleas to the lesser offences and had made clear that he would not plead to an offence with a sexual element. The judge then reduced the sentence from the guideline-based assessment to five years to reflect totality with the existing sentence. That approach, including consecutivity, was appropriate.

5. The judge should have obtained a pre-sentence report and warned counsel before deciding to invoke the dangerousness provisions. Such material might show that risk could instead be managed by a determinate sentence: R v Burinskas [2014] EWCA Crim 334. However, the pre-appeal report assessed the appellant as posing a high risk of serious harm and reoffending. Given that assessment and the brutal, unusual sexual assault, the judge was entitled to find that an extended sentence was necessary for public protection.

• Court of Appeal (Criminal Division): sentence appeal dismissed: [2018] EWCA Crim 1033.
• Sheffield Crown Court: on 23 March 2017, imposed an extended sentence under section 226A of the Criminal Justice Act 2003 for sexual assault, with a concurrent sentence for assault occasioning actual bodily harm.