REX v PHILIP BOARDMAN

For historic sexual offences committed by a young offender, the maximum sentence available when the offending occurred is generally a significant constraint, but it is not invariably an absolute ceiling. A current sentencing guideline may permit a sentence exceeding that maximum in a rare and particularly serious case. The assessment is fact-sensitive. An appellate court should respect the sentencing judge’s evaluation, especially where that judge conducted the trial and considered the guideline carefully. It should intervene only where the sentence was not reasonably open to the judge or there was a clear error of approach. Factual similarities with another case do not require an identical sentence.

The applicant was convicted at the Crown Court at Liverpool of historic indecent assaults committed when he was aged 14. The sentencing judge treated 12 months as the relevant starting point but imposed concurrent sentences resulting in a total of four years, having regard to the repeated offending and the harm suffered by the victim. A single judge refused leave to appeal against sentence.

On renewal, the applicant argued that R v Limon [2020] EWCA Crim 39 required the sentence to remain within the maximum available at the time of offending. He also suggested that a special court should resolve an apparent tension between earlier authorities. The central issue was whether this was a rare case in which a sentence beyond that maximum was permissible and whether the sentencing judge had made any appealable error.

The renewed application for leave to appeal against sentence was refused.

1. Sentencing framework. For historic offences, the applicable sentencing regime is that in force at sentence, subject to the maximum sentence available when the offence was committed and with regard to current guidelines for equivalent offences. Where custody was available at the time of offending, the offender’s age at that time is relevant principally to culpability and maturity. The court did not resolve the possible tension between R v Forbes & Ors [2016] EWCA Crim 1388, R v L [2017] EWCA Crim 43 and R v Limon [2020] EWCA Crim 39, because this case provided no proper basis for doing so.
2. Guideline exception. Paragraph 6.3 of the guideline for sentencing children and young persons establishes that a sentence more severe than the maximum available at the time of offending will rarely be appropriate. It does not create an inflexible ceiling. A sentence at or close to that maximum may be appropriate, and a particularly serious case may fall within the rare class justifying a higher sentence.
3. Application of R v Limon. That decision did not prescribe a factual framework requiring a particular sentence whenever the facts were similar. The sentencing judge had considered paragraph 6.3 at length, had conducted the trial, and had assessed the repeated offending and the victim’s harm after hearing the evidence.
4. Appellate review. The Court of Appeal should not interfere unless the sentencing conclusion was not reasonably open to the judge or the judge plainly fell into error. There was no such error. The sentence was within the range open to the judge and reflected his factual assessment.

• Court of Appeal (Criminal Division): On 5 October 2022, the renewed application for leave to appeal against sentence was refused.
• Single judge: Refused the applicant’s initial application for leave to appeal against sentence.
• Crown Court at Liverpool: Convicted the applicant on 27 January 2022 and sentenced him on 1 April 2022 to concurrent sentences totalling four years’ imprisonment.