Emerton & Ors, R. v

A life sentence, although a sentence of last resort, is justified where exceptionally grave sexual offending, very high culpability and a significant continuing risk of serious harm make it necessary. Its minimum term must reflect punishment and deterrence, while the life sentence manages continuing risk.

On an undue-leniency reference, the fact that another court might have imposed a higher sentence does not itself justify intervention. A gross sentencing error, such as use of an incorrect guideline category with a failure to reflect total criminality, may do so.

For an inchoate sexual conspiracy, the starting point is the harm and culpability of the completed offence agreed by the conspirators. The sentence must then allow an appropriate discount for non-execution and its circumstances.

The Attorney General referred as potentially unduly lenient sentences imposed at Luton Crown Court on Michael Emerton, Robert Lindsey and Thomas Perry for grave sexual offences involving children. Emerton and Matthew Webby also challenged their sentences, and Emerton sought permission to appeal the concurrent life sentence imposed for the later indictment.

Emerton had committed sustained sexual abuse of his children and arranged for other men to abuse them. Lindsey and Webby participated in sexual offending involving one child. Perry was convicted of conspiracies to rape and commit sexual activity with a child, although the planned rape was not carried out.

The central issues were whether life and extended sentences were justified by dangerousness and risk, whether any sentences were unduly lenient, and how the court should sentence unexecuted conspiracies.

1. Emerton’s appeals and applications were dismissed. The court upheld the life sentence. The sustained and exceptionally depraved abuse, the children’s vulnerability, Emerton’s limited insight and the continuing significant risk of serious harm justified treating this as a last-resort case. The judge had correctly applied the principles in R v Saunders [2014] 1 Cr App R (S) 258 and AG’s Ref No 27 (Burinskas) [2014] 1 WLR 429. A notional determinate term of 30 years after trial, producing a 10-year minimum term after plea credit and the applicable calculation, was high but not manifestly excessive.

2. The Attorney General’s reference did not justify increasing Emerton’s minimum term. The additional involvement of other offenders was a significant aggravating feature, but the sentence was not unduly lenient. A court might have upheld a notional term of about 35 years after trial, but the resulting difference in the minimum term was less than two years. There was no gross error, and the life sentence adequately managed risk.

3. The court accepted that the complex second indictment could make it unreasonable to expect an earlier guilty-plea indication. The judge was therefore entitled to allow the one-third reduction under the exception in the Definitive Guideline on Reduction in Sentence for a Guilty Plea.

4. The reference succeeded as to Lindsey. The judge had used the wrong sentencing-guideline category for the lead offence. The proper starting point for the sexual activity was eight years after trial, within a range of five to 10 years. The sentence also failed adequately to reflect Lindsey’s total criminality and an unjustified disparity with Webby. The court quashed the sentence for the lead count and substituted an extended sentence of 10 years and six months, comprising seven years and six months’ custody; the other sentences remained unchanged.

5. The reference concerning Perry was refused, and Webby’s application for permission to appeal was dismissed. For Webby’s unexecuted rape conspiracy, the orthodox approach was to start from the harm and culpability of the completed offence agreed, then discount according to the fact and circumstances of non-execution. The findings that Webby was dangerous and required an extended sentence were open to the judge.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 606, the court dismissed the challenges by Emerton and Webby, refused to interfere with the sentences of Emerton and Perry on the Attorney General’s reference, and increased Lindsey’s sentence.
• Luton Crown Court: HHJ Kay QC imposed the sentences under challenge, including life sentences for Emerton and extended sentences for Lindsey, Perry and Webby. No citation for the Crown Court sentencing decisions was stated.