REGINA v CHRISTOPHER HAYTER

On an appeal against sentence, the question is whether the sentence as a whole is manifestly excessive. A substantial delay in bringing an offender to justice, where the offender is not responsible for it, is an important mitigating factor. The sentencing judge must give that delay adequate and identifiable weight. Where it has not been properly considered, the appellate court may reduce a consecutive component of the sentence while leaving the consecutive structure intact. The appellate court will generally respect the sentencing judge’s assessment of the evidence concerning impact and aggravating features, including breach of trust and persistent offending.

The appellant was convicted at the Crown Court at Cambridge of multiple sexual offences against a child, including offences under the Sexual Offences Act 2003 and the Protection of Children Act 1978. He received a total sentence comprising four years’ imprisonment followed consecutively by a special custodial sentence of six years under the Criminal Justice Act 2003.

He appealed against sentence, arguing that the sentence for assault by penetration was too high, that the judge had wrongly assessed psychological harm and grooming, and that insufficient weight had been given to a delay of three years and four months. The central issue was whether the sentence as a whole was manifestly excessive.

Appeal allowed in part. The total sentence was reduced to three years’ imprisonment followed consecutively by the existing special custodial sentence of six years, comprising five years’ custody and a one-year extension period.

1. The assault by penetration was properly placed in category 3A of the sexual offences guideline, with a starting point of six years and a range of four to nine years. The offending involved a gross and persistent breach of trust. It was stopped by the victim’s determined physical resistance rather than by the appellant, and the force used caused subsequent pain and discomfort. The complaint that the sentence should have been at the bottom of the range was therefore unsustainable.
2. The sentencing judge was entitled to assess the evidence concerning the impact of the offending. The judge had not used psychiatric harm to place the offences in a higher guideline category. Whether conduct was described as grooming was of limited significance in the circumstances, because the appellant had exploitatively abused an established relationship of trust.
3. The delay of three years and four months was an important mitigating factor. Although the judge acknowledged it, the sentencing remarks did not identify the extent to which it had reduced the sentence. The delay was not attributable to the appellant. Inadequate consideration of it meant that the sentence, viewed as a whole, was manifestly excessive.
4. The court did not criticise the decision to impose consecutive sentences. The sentences on the other counts were reduced from four years to three years to reflect the delay. The other concurrent sentences and the special custodial sentence remained unchanged.

• Court of Appeal (Criminal Division) — [2021] EWCA Crim 1562. Leave to appeal was granted and the appeal was allowed to the extent identified; the sentence was reduced.
• Crown Court at Cambridge — The appellant was convicted on 12 January 2021 and sentenced on 20 January 2021, with the sentence amended at a slip-rule hearing on 22 February 2021.