Croudace, R v

In sentencing sexual offences, a factor used to place offending in a guideline harm or culpability category should not ordinarily be counted again as an aggravating feature when increasing the sentence within that category range. The correct category must reflect the proved nature of the touching, including the distinction between touching over clothing and touching genitalia under clothing.

Consecutive sentences for separate complainants and separate offending may be proper. However, the resulting aggregate sentence must satisfy totality and must be based on correctly categorised individual sentences and an accurate guilty-plea reduction.

The appellant, a former foster parent of good character, pleaded guilty at the first reasonable opportunity to three sexual assaults of children under 13 and to three offences of making indecent photographs of children.

At the Crown Court at Newcastle upon Tyne, the Recorder imposed consecutive sentences totalling nine years and six months’ imprisonment. The appellant challenged the sentence as manifestly excessive and wrong in principle, principally on totality grounds. The appeal also raised the correct guideline categorisation of the assaults, alleged double-counting of aggravating features, and an arithmetical error in calculating the one-third credit for the guilty pleas.

1. Appeal allowed. The total sentence of nine years and six months was manifestly excessive. It was quashed and replaced with a total sentence of six years and six months’ imprisonment.

2. The Recorder had correctly treated the assaults involving touching genitalia under clothing as Category 2A offences. However, abuse of trust was the feature that placed the offences in culpability A, and the touching of naked genitalia was the feature that placed them in Category 2 harm. Those features should not then have been used again to increase the sentence within the category range. The very young age of the children was a separate aggravating feature.

3. The assault involving touching over clothing was wrongly placed in Category 2A. It fell within Category 3A because it did not involve touching naked genitalia. Although repeated offending and the child’s age justified a sentence at the top of that range, the sentence ultimately imposed for that count should be 12 months after credit for plea.

4. The Recorder also made an arithmetical error. A one-third reduction from four years produces 32 months, or two years and eight months, rather than three years and four months.

5. Consecutive sentences for the separate complainants and for the indecent-image offending were not wrong in principle. Applying the correct categorisation and the full plea reduction, consecutive sentences of 12 months, two years and eight months, two years, and 10 months produced a proportionate total of six years and six months.

• Court of Appeal (Criminal Division): Allowed the sentence appeal, quashed the total sentence of nine years and six months, and substituted six years and six months’ imprisonment.
• Crown Court at Newcastle upon Tyne: On 15 May 2018, imposed consecutive sentences totalling nine years and six months’ imprisonment following guilty pleas.