R v Katie Weeks

A sentence appeal will fail unless the sentence is manifestly excessive or wrong in principle. In assessing seriousness for offences under Sexual Offences Act 2003, the court must assess harm and culpability as a whole. It should not focus only on the physical features of the abuse.

A guideline starting point for a single offence by a first offender may properly be increased to reflect multiple offending and totality. A victim’s extreme youth and a gross breach of trust may justify that increase. There is no impermissible double counting merely because those features could instead have informed the choice of effective starting point, provided they are reflected only once.

The applicant was convicted at Bournemouth Crown Court of three offences of causing or inciting a child under 13 to engage in sexual activity, two offences of taking indecent photographs of a child, and two offences of distributing such photographs. The conduct involved her very young son and images sent to a man known to have a sexual interest in children.

On 13 November 2019, HHJ Climie imposed nine years’ imprisonment on each causing or inciting count, concurrently, with concurrent sentences on the other counts. After a delay of 697 days, the applicant sought an extension of time and permission to appeal her sentence. She contended that the starting point was too high, that the judge had double counted aggravating features, and that insufficient weight had been given to mitigation.

The central issue was whether the sentence was arguably manifestly excessive or wrong in principle.

1. The court refused both the application for permission to appeal sentence and the application for an extension of time. The nine-year sentence was not arguably manifestly excessive or wrong in principle.

2. Category 2A of the applicable guideline was plainly appropriate for the offences contrary to Sexual Offences Act 2003, s.8. Its eight-year starting point, within a range of five to ten years’ custody, was for a single offence by a first offender. The applicant’s offending was nevertheless serious. The assessment had to consider the whole harm and culpability, rather than only the physical aspects of the abuse. The victim’s extreme youth meant that Category 1 was arguably available, although the court did not criticise the agreed Category 2A classification.

3. R v YZ (Andrew Barker) [2019] EWCA Crim 466 was a fact-specific decision. It did not establish a wider rule for selecting a sentence in offences of this kind. Its nine-year post-trial sentence, which the earlier court had regarded as lenient but did not disturb, did not assist the applicant.

4. The judge was entitled to move upward from the eight-year starting point. The lead sentence had to reflect multiple offences, including the photographing and distribution of some images, and therefore the totality of the conduct. The gross breach of trust and the victim’s extremely young age were serious features. Treating them as aggravating factors, rather than as factors elevating the effective starting point within the category, made no difference and did not amount to double counting.

5. The judge had considered the substantial personal mitigation and reduced a notional ten-year sentence to nine years. The court found that the resulting reduction was appropriate. Permission to appeal and the consequential extension of time were refused.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1583, the court refused permission to appeal sentence and refused an extension of time.
• Bournemouth Crown Court: On 13 November 2019, following trial before HHJ Climie, the applicant was convicted and sentenced to concurrent terms of nine years’ imprisonment on the three causing or inciting counts, with concurrent sentences on the remaining counts.