LDG, R v

When sentencing a historic offence, the court must determine whether a custodial sentence was legally available when the offence was committed. A statutory maximum, a modern equivalent offence and current sentencing guidance do not displace that historical limit. If custody was unavailable under the law then applicable, the sentencing court cannot impose it now. The inquiry must therefore extend beyond identifying the historic maximum penalty and require careful attention to the offender’s age and the sentencing regime in force at the time. A lawful community disposal must be substituted, with its form determined by present need and the circumstances of the case.

The appellant pleaded guilty at Snaresbrook Crown Court to two historic counts of indecent assault on his younger sister, committed in 1976–1977 when he was treated as aged 11. He was acquitted of the remaining counts. The sentencing judge imposed concurrent terms of 20 months’ imprisonment.

A single judge refused leave to appeal. On the renewed application, the Criminal Appeal Office identified the relevance of R v Forbes and Others [2017] 1 WLR 53. The central issue was whether imprisonment could lawfully be imposed for offences committed by a boy under 14 under the sentencing regime then in force.

1. Leave to appeal was granted and the appeal allowed. The concurrent custodial sentences were set aside and replaced with a conditional discharge for six months.
2. The court accepted that, under the sentencing regime applicable when the offences were committed, a custodial sentence could not have been imposed because the appellant was under 14. The sentencing judge therefore had no power to impose imprisonment, notwithstanding the historic statutory maximum and the seriousness of the conduct found.
3. The court followed R v Forbes and Others [2017] 1 WLR 53, which was binding. Although questions had been raised about that decision in R v AM [2018] EWCA Crim 279, it was unnecessary to pursue them. The court also found it unnecessary to decide whether actual penetration affected the appropriateness of using the current rape guideline by measured reference.
4. In historic sexual-offence cases, courts and advocates must examine the offender’s age and whether custody was legally available when the offence occurred. The inquiry is broader than identifying the statutory maximum for the offence.
5. Only a community disposal had been available at the time. A probation order was unnecessary because the appellant had committed no further sexual offence for over 40 years, had formed relationships, and had already served four and a half months’ imprisonment which should not have been served. A short conditional discharge was the only realistic lawful disposal.

• Court of Appeal (Criminal Division) — On a renewed application after refusal by the single judge, the court granted leave and allowed the sentence appeal: [2018] EWCA Crim 2264.
• Crown Court at Snaresbrook — The appellant pleaded guilty to two counts of indecent assault. On 23 March 2018, he received concurrent sentences totalling 20 months’ imprisonment.