JOHN ANTHONY TURNER v THE QUEEN

For historic sexual offending, the sentencing court should identify the modern equivalent offence and apply current guidelines with measured regard to the historic statutory sentencing framework. The total sentence must remain proportionate to the offences proved and to the wider range of comparable offending.

A judge sentencing after trial may make factual findings only where they are consistent with the verdicts, supported to the criminal standard, and reached through a fair procedure. A specimen count alleging an offence on a date other than a specified count supports sentencing for one additional occasion only. A multi-incident count must state a minimum number of occasions; the judge cannot cure defective pleading by finding a wider pattern that the jury may not have found.

The appellant was convicted after trial at Norwich Crown Court of nine counts of indecent assault on a male person under Sexual Offences Act 1956, s 15(1), and three counts of indecency with a child under Indecency with Children Act 1960, s 1(1). The offences were historic child sexual abuse involving four boys. The trial judge imposed a total of 16 years’ imprisonment.

He appealed against sentence. He contended that the judge had wrongly sentenced him on the basis of digital anal penetration, had treated specimen counts as multiple-incident counts, and had imposed a disproportionate total sentence. The central issues were the permissible factual basis for sentence after trial, the effect of the indictment’s wording, and totality.

1. Appeal allowed in part. The court quashed the six-year sentences on counts 2, 5 and 6, substituting four years on each. It left the remaining sentences and their structure undisturbed. The total sentence was reduced from 16 to 12 years’ imprisonment.

2. The judge had wrongly found that counts 2 and 5 involved digital anal penetration. Although a sentencing judge may make findings after trial, the findings must be consistent with the verdicts, supported by evidence sufficient to make the judge sure, and made fairly. The evidence did not justify this finding. In any event, before departing from the prosecution’s clearly stated basis, the judge should have given notice and allowed the defence a full and fair opportunity to address it.

3. Counts 2 and 6 were pleaded as specimen counts, alleging an assault on a date other than that in an identified count. A guilty verdict on each could therefore establish only one additional occasion. The court applied R v A [2015] EWCA Crim 177: a multi-incident count must specify a minimum number of occasions. If the indictment does not do so, the sentencing judge cannot supply the deficiency by finding a pattern which the jury may or may not have found. The wording in brackets referring to further assaults did not alter that conclusion.

4. The offending was grave and warranted a substantial sentence. Nonetheless, proportionality had to be maintained across the range of offences under ss 7, 8 and 9 of the Sexual Offences Act 2003. The excessive sentence for the offences against BN had made the overall term out of scale. A 12-year total properly reflected the indictment, the verdicts, the evidence, the relevant guidelines and totality.

• Court of Appeal (Criminal Division): Allowed the appeal in part and substituted four-year sentences on counts 2, 5 and 6, reducing the total term to 12 years.
• Norwich Crown Court: Following trial before HHJ Bacon QC, convicted the appellant of historic sexual offences and imposed a total sentence of 16 years’ imprisonment on 13 October 2021.