R v Jonathan Diba-Musangu

In sentencing a young offender, the court must consider age and maturity throughout the offending period and at sentence. Reaching 18 is not a cliff edge. A long sentence may be necessary for grave, repeated sexual offending against multiple victims, but it may still be manifestly excessive where most offending occurred while the defendant was under 18 and the defendant remains young at sentence. Totality, the gravity and duration of the offending, the number and vulnerability of victims, and the sentence’s impact must all be assessed. A custodial term of 24 years was reduced to 21 years for a defendant aged 23 at sentence, while the four-year extended licence was retained.

The appellant was sentenced in the Crown Court at Minshull Street, Manchester after pleading guilty to two counts and being convicted after trial on a further twelve counts. The offences involved serious sexual offending against several victims, much of it committed while the appellant was aged 15 or 16. The sentencing judge imposed concurrent extended determinate sentences comprising 24 years’ custody and four years’ extended licence on the principal rape counts, with no separate penalty on the remaining counts.

The appellant sought permission to argue that an extended sentence was unnecessary and that the custodial term was manifestly excessive. There was also a procedural issue because the judge had restructured the sentence after pronouncement without re-pronouncing it in open court.

The court refused permission to appeal against the necessity of the extended sentence. The pre-sentence report, the facts of the offending, the sentencing judge’s observations at trial and the high risk of serious harm to the public made the extended sentence unchallengeable. The four-year extended licence was justified notwithstanding the length of the custodial term.

1. Procedural correction. The sentencing judge had restructured the sentence after pronouncement, but had not pronounced the revised sentence in open court. That was contrary to rule 28.4(2)(b) of the Criminal Procedure Rules. The court relied on DJ [2015] EWCA Crim 563 at [52-53] in correcting the unlawful global extended licence structure. It dealt with the procedural failure by quashing and re-pronouncing the sentences.
2. Youth and sentence. The court applied Clarke, Andrews and Thompson [2018] EWCA Crim 185: attaining 18 is not a cliff edge in sentencing. The appellant’s age and maturity throughout the offending, and at the date of sentence, had to be considered alongside the gravity and number of offences, the period of offending, the number and vulnerability of the victims, and totality. His intelligence and achievements showed maturity appropriate to his age, but did not remove the mitigation arising from his youth.
3. Disposition. Although a very long sentence was required, 24 years’ custody was manifestly excessive for a defendant aged 23 at sentence who had been under 18 for most of the offending and no more than 20 when committing the final rape. The court reduced the custodial term to 21 years, retaining the four-year extended licence. The resulting 25-year extended determinate sentences on counts 1, 2, 5, 9 and 14 ran concurrently. No separate penalty was imposed on the remaining counts. The court also confirmed the lifelong police notification consequences arising from Schedule 3 to the Sexual Offences Act 2003.

• Court of Appeal (Criminal Division) — In [2022] EWCA Crim 957, permission was refused on the challenge to the extended sentence, but the sentence appeal was allowed in part. The custodial term was reduced from 24 years to 21 years, with the four-year extended licence retained.
• Crown Court at Minshull Street, Manchester — The appellant was sentenced after guilty pleas to two counts and conviction after trial on twelve further counts. Concurrent extended determinate sentences of 24 years’ custody and four years’ extended licence were imposed on the principal rape counts.