R v Raymond Ellis

When sentencing a historic sexual offence, the court must apply the sentencing regime in force at sentence while respecting the maximum available when the offence was committed. It should have measured and reflective regard to a current guideline for an equivalent offence. The exercise is not mathematical and must not recreate the likely historic sentence.

The question is whether the sentence, assessed by modern sentencing practice, is excessive or disproportionate despite the historic maximum. In an exceptionally serious case, that maximum may be appropriate. A guilty-plea reduction does not reduce the statutory maximum used for calibration. Later mental-health problems which did not lessen culpability do not justify a further reduction where they can be managed in prison.

The Attorney General referred as unduly lenient a five-year sentence imposed at Bristol Crown Court on 13 May 2022 for a 1987 indecent assault. The offender had pleaded guilty after DNA evidence linked him to the offence.

The sentencing judge treated the conduct as equivalent to modern rape under Sexual Offences Act 2003 section 1. He adopted a modern guideline starting point, but reduced the pre-plea term from nine years and four months to six years and eight months to reflect the former ten-year maximum for indecent assault. After a 25% guilty-plea reduction, he imposed five years’ imprisonment.

The central issue was whether that calibration of the historic maximum made the sentence unduly lenient.

1. Reference allowed. The five-year sentence was unduly lenient. It was quashed and replaced with seven and a half years’ imprisonment.

2. Under Criminal Justice Act 1988 section 36, appellate intervention requires more than leniency. The sentence must disclose gross error or a substantial departure from ordinary sentencing norms. That high threshold was met.

3. Historic sexual offending is sentenced under the current regime, subject to the maximum available when the offence was committed. The court may have regard to the applicable current guideline for an equivalent offence under the Sexual Offences Act 2003, but must use it in a measured and reflective way. It must not apply a mathematical reduction or attempt to reconstruct the sentence likely to have been imposed at the time of the offence. The correct inquiry is whether the sentence reached is excessive or disproportionate for the offending, assessed by modern sentencing practice, while properly calibrating for the historic maximum.

4. The judge had wrongly reduced the modern assessment by asking what sentence would have been imposed in 1987. The historic maximum remained ten years before credit for a guilty plea; it was not reduced to seven and a half years for calibration purposes. This was an exceptionally grave indecent assault, involving violent abduction, prolonged oral rape, restraint, injury, significant aggravating features, relevant previous offending and severe lasting harm. A ten-year pre-plea term was neither excessive nor disproportionate.

5. The offender’s later mental-health problems did not reduce his culpability. The evidence showed that his condition could be managed in prison and that he was fit to serve the sentence. Applying the 25% guilty-plea reduction produced a final term of seven and a half years. All other elements of the sentence remained undisturbed.

• Court of Appeal (Criminal Division): Allowed the Attorney General’s reference under Criminal Justice Act 1988 section 36, quashed the five-year sentence and substituted seven and a half years’ imprisonment.
• Bristol Crown Court: On 13 May 2022, imposed five years’ imprisonment following a guilty plea to indecent assault.