Regina v “BGI”

When sentencing sexual offences against a child, the court must assess the applicable guideline category and weigh the offending, harm, aggravating features and mitigation. A sentencing judge need not specify a separate numerical allowance for every mitigating factor, provided the relevant matters were identified and taken into account. Caring responsibilities, health difficulties and the additional burdens of imprisonment during the Covid-19 pandemic are relevant considerations, but they do not necessarily outweigh the seriousness of the offending. Immediate imprisonment remains permissible where appropriate punishment can be achieved only by custody.

The appellant pleaded guilty in the Crown Court at Carlisle to sexual offences involving a 14-year-old girl in his care, including a course of sexual assaults and engaging in sexual activity in her presence. He received concurrent sentences on two counts, consecutive to a sentence on another count, totalling 12 months’ imprisonment.

He accepted that custody was unavoidable but appealed against the refusal to suspend the sentence. He relied on his health, the Covid-19 pandemic and the harmful effect of imprisonment on two young adults for whom he was a full-time carer. The central issue was whether the sentencing judge was entitled to conclude that the seriousness of the offending required immediate imprisonment.

1. Appeal dismissed. The custody threshold was passed, and there was no complaint about the length of the total term. The offending involved a substantial age disparity, a prolonged course of conduct beginning shortly after the victim’s fourteenth birthday, the appellant’s position of care and the victim’s vulnerability. The court agreed that counts 1 and 5 fell within category 3A of the Sexual Assault Guideline. It observed that count 4 might have fallen within category 2A, but accepted that uncertainty about the definition of masturbation could explain the judge’s categorisation. In any event, an upward adjustment from the category 3A starting point would have been available.
2. The sentencing judge correctly identified and took into account the mitigating features, including serious ill-health, caring responsibilities and the effect of imprisonment on others. It was unnecessary to state precisely what allowance had been made for each separate matter. Although express reference to R v Manning would have been preferable, the judge had clearly considered the particular difficulty of serving a custodial sentence during the Covid-19 pandemic.
3. On suspension, the judge correctly identified the relevant considerations under the Imposition guideline. The alternative care arrangements and the available information enabled a fair assessment of the harmful impact of imprisonment on the young adults in the appellant’s care. Having weighed the relevant considerations, the judge was entitled to conclude that the offending was so serious that appropriate punishment could be achieved only by immediate imprisonment.

• Crown Court at Carlisle: The appellant pleaded guilty to three sexual offences and was sentenced to a total of 12 months’ imprisonment.
• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. The court upheld the length of the term and the refusal to suspend it.