R v Anthony Barker

Historic sexual offences are sentenced under the regime in force when sentence is imposed. The court must assess seriousness by culpability and harm. It must not reduce guideline starting points proportionately to reflect lower maximum sentences applicable when the offences were committed, although the historic maximum remains binding.

On an appeal against sentence, intervention requires a sentence that is wrong in principle or manifestly excessive. Advanced age, previous good character and the hardship of imprisonment may be material mitigation, but they must be weighed against sustained sexual abuse, grooming, abuse of trust and its lasting impact. A victim’s view of the appropriate sentence does not determine the sentence.

The applicant, an 88-year-old former priest and teacher, pleaded guilty in the Crown Court at Durham to two historic counts of indecent assault and one count of indecency with a child. The offences were committed at a boarding school in the 1960s against a pupil. He received 28 months’ imprisonment on one count, with no separate penalty on the remaining counts.

A single judge refused permission to appeal. The applicant renewed his application to the full court. He contended that the sentencing judge should have adjusted modern guideline starting points to reflect historic maximum sentences, and had given insufficient weight to mitigation, including his age, health, good character and the complainant’s request for leniency. The central issue was whether the sentence was wrong in principle or manifestly excessive.

1. The renewed application for permission to appeal was dismissed. The sentencing judge had correctly approached historic offending under the applicable current sentencing regime. Annex B of the sexual-offences guidelines requires the court to assess seriousness principally by culpability and harm. It does not permit a pro rata reduction of modern guideline starting points to reflect lower historic maxima. Such an adjustment would itself be wrong in principle.

2. The judge was entitled to treat the offending as grave. It involved repeated sexual abuse of a child by a priest and teacher in a boarding-school setting, with grooming and a profound breach of trust. The judge had properly reflected the specimen nature of some offending and the enduring effect on the complainant.

3. The judge had taken account of the applicant’s age, health and otherwise respectable life. However, the weight attached to purported good character was properly qualified because the offending had remained concealed for decades. The hardship of imprisonment at an advanced age did not displace the need for a sentence commensurate with the seriousness of the offending.

4. The complainant’s request for a minimal sentence did not require a particular sentencing outcome. A court must impose the appropriate sentence having regard to the offence and offender, while taking account of victim impact so far as appropriate. A victim’s opinion as to the sentence is not relevant to that exercise.

5. There was no arguable error of principle and the 28-month sentence was not arguably manifestly excessive. The court agreed with the single judge’s conclusion that no reasonably arguable ground justified permission to appeal.

• Court of Appeal (Criminal Division) — dismissed the renewed application for permission to appeal against sentence: [2022] EWCA Crim 1871.

• Court of Appeal (single judge) — refused permission to appeal against sentence.

• Crown Court at Durham — on 11 March 2022, imposed 28 months’ imprisonment for historic sexual offending.