Hyde-Gomes, R. v

For historic sexual offending, the offender is sentenced under the regime current at sentence, but the statutory maximum available when the offence was committed remains the ceiling. Modern equivalent offences and their guidelines should be used in a measured and reflective way. A multiple-incident count must identify the number, or minimum number, of incidents alleged; otherwise its sentencing scope cannot be properly determined. A total sentence for repeated sexual abuse of a vulnerable child must reflect both the gravity of the individual offences and the overall campaign, and provide just and proportionate punishment.

The offender was convicted at Croydon Crown Court of twelve sexual offences against his stepdaughter, committed between 1997 and 2000. The offending included repeated compelled oral sexual acts, other indecent assaults, and attempted rape. He received a total of ten years’ imprisonment and a Sexual Harm Prevention Order.

The Attorney General referred the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. The offender sought leave to appeal against sentence, alleging error in principle arising from the drafting and treatment of certain counts. The central issues were the proper sentencing treatment of defective multiple-incident counts, historic offending, and the adequacy of the total sentence.

1. The court granted the Attorney General leave to refer the sentence, held that the total of ten years’ imprisonment was unduly lenient, and increased it to sixteen years. It refused the offender leave to appeal against sentence. His arguments concerning possible defects in the convictions were not arguable sentencing grounds while the convictions remained valid and subsisting.

2. The multiple-incident counts were seriously deficient. Under rule 10.2(2) of the Criminal Procedure Rules 2015, such a count may represent a course of conduct, but its particulars must state the number or minimum number of alleged occasions. Applying R v A [2015] EWCA Crim 177, the court treated each deficient multiple-incident count as comprising two incidents only.

3. There was insufficiently clear evidence that the offences in counts 3 and 4 occurred before the complainant’s thirteenth birthday. The court therefore proceeded on the basis that they were committed after that birthday, so that section 236A of the Criminal Justice Act 2003 was not engaged. The court reiterated the need to identify significant dates and birthdays before trial, so that the indictment and evidence address their legal significance.

4. For historic sexual offences, the applicable sentencing regime is that in force at sentence, subject to the maximum available when the offence was committed. The sentencer should identify the modern equivalent offences and use current guidelines in a measured and reflective manner, consistently with R v Forbes [2016] EWCA Crim 1388.

5. The overall conduct comprised eight instances which would now amount to oral rape, attempted vaginal rape, and seven other serious sexual assaults. The attempted rape and the oral sexual assaults involved a vulnerable child, an abuse of trust, violence, and enduring harm. Although the case fell short of the exceptional gravity contemplated for sentences of twenty years or more, ten years failed to reflect the individual offences or the repeated campaign of abuse.

6. The court substituted concurrent sentences of eight years on counts 2, 3, 4, 6, 7 and 12, and an eight-year consecutive sentence on count 10. The remaining sentences and the Sexual Harm Prevention Order were left unchanged, producing a total sentence of sixteen years’ imprisonment.

• Court of Appeal (Criminal Division) — On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the ten-year total sentence unduly lenient and substituted a total of sixteen years: [2018] EWCA Crim 2364. It refused the offender leave to appeal against sentence.

• Crown Court at Croydon — The offender was convicted by a jury of twelve sexual offences on 11 April 2018 and, on 12 April 2018, received a total sentence of ten years’ imprisonment and a Sexual Harm Prevention Order.