Gezi, R. v

When sentencing a multiple-incident count, a guideline expressed for a single offence must not be applied as though the count concerned only one incident. The minimum number of offences admitted or proved must inform the assessment of seriousness and totality. Multiple culpability features may justify an upward adjustment from the guideline starting point, but overlapping features must not be double-counted. A total sentence that fails properly to reflect a sustained course of serious sexual offending, including abuse of trust, grooming and severe harm, may be unduly lenient.

The offender, a mental-health nurse and team leader, pleaded guilty to a multiple-incident count of sexual activity with a child and a multiple-incident count of sexual activity with a person with a mental disorder by a care worker, contrary to sections 9 and 38 of the Sexual Offences Act 2003.

The sentencing judge imposed concurrent terms of seven years and eight months’ imprisonment. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the concurrent sentence properly reflected the number, gravity and aggravating features of the offences.

1. The Attorney General’s reference was allowed. The court granted leave, held that the concurrent terms of seven years and eight months were unduly lenient, quashed them, and substituted concurrent terms of 10 years’ imprisonment.
2. The applicable definitive guidelines were directed to a single offence. Both counts were multiple-incident counts and specified minimum numbers of offences. It would therefore be artificial and contrary to the interests of justice to sentence as though each count alleged only one offence. Rule 10.22 of the Criminal Procedure Rules permits such a charge so that the sentencing court knows the minimum number of offences involved.
3. The court accepted that the starting categories were Category 1 harm and Category A culpability. The child-sexual-activity count involved several Category A features, including planning, grooming, abuse of trust, targeting a particularly vulnerable child, deception about age and a marked age disparity. Although overlapping features must not be double-counted, their multiplicity permitted an upward adjustment from the guideline starting point before aggravating and mitigating factors were considered.
4. There was grave breach of professional trust, repeated penetrative offending with ejaculation, severe psychological harm, and attempts to conceal evidence. The absence of relevant convictions was the only real mitigation. Previous good character was of little, if any, mitigating force where it had facilitated the offender’s employment and offending.
5. Six penetrative offences with ejaculation, together with the earlier sexual activity and the wider course of grooming and manipulation, required a substantially longer total sentence. The least appropriate total after a trial was 11 years. Allowing credit comparable to that allowed below for the very late guilty pleas, the least just and proportionate sentence was 10 years’ imprisonment.

• Court of Appeal (Criminal Division) — On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference, finding the sentence unduly lenient and substituting concurrent 10-year terms: [2019] EWCA Crim 286.
• Sentencing court (not stated in the judgment) — Following guilty pleas, it imposed concurrent sentences of seven years and eight months’ imprisonment.