R v Bryan Bowater

Sentencing courts must follow relevant sentencing guidelines. A custodial sentence is permissible only where the custody threshold is met: the offence or combination must be so serious that neither a fine alone nor a community sentence can be justified. If custody may be suspended, the guideline’s four-step process must be addressed. Sentencing remarks must explain movement within the applicable category range and the decision whether immediate custody is required. A bare appeal to deterrence or public knowledge is insufficient. An unexplained sentence at the top of the range for fleeting offending may be manifestly excessive, requiring the appellate court to substitute a proportionate sentence, including time already served where appropriate.

Following a guilty plea to one count of sexual assault contrary to s.3 of the Sexual Offences Act 2003, the applicant was sentenced by HHJ Morris at the Crown Court at York on 30 May 2022 to three months’ immediate imprisonment.

An application for permission to appeal was referred directly to the Full Court because of the imminent release date. The sentencing remarks gave little explanation for placing the offence at the top of the relevant category range and did not adequately address the sentencing guideline or suspension of custody. The central issues were whether the sentence was manifestly excessive and what sentence should replace it.

1. Disposition. Permission to appeal was granted and the appeal was allowed. The sentence of three months’ imprisonment was quashed and replaced with imprisonment for the 25 days already served. The appellant was therefore entitled to immediate release.
2. Mandatory sentencing guidelines. Section 125(1) of the Coroners and Justice Act 2009 makes compliance with relevant sentencing guidelines mandatory. The sentencing court must keep all relevant guidelines in mind when determining the sentence.
3. Custody threshold and suspension. The Definitive Guideline on the Imposition of Community and Custodial Sentences provides that custody must not be imposed unless the offence, or the offence together with associated offences, is so serious that neither a fine alone nor a community sentence can be justified. Where a custodial sentence may be suspended, the judge must use the four-step process set out at pages 7 and 8 of the Guideline to consider whether the custody threshold has been crossed and, if so, whether suspension is appropriate.
4. Adequacy of reasons and proportionality. The sentencing judge must provide a basic explanation of the mechanism of sentencing. That includes explaining movement within the category range and the decision to impose immediate custody. A general statement that members of the public must know that such conduct leads to imprisonment does not satisfy that requirement.
5. Application. The court agreed with the prosecution’s Category 3B categorisation. Given the extremely short duration of the assault, placing the offending at the very top of the range before credit for mitigation and the guilty plea was manifestly excessive. The appropriate sentence would have been no more than the middle of the range or near the starting point, which warranted a high-level Community Order. In light of the 25 days already served, time served was the just sentence.

1. Court of Appeal (Criminal Division): Permission to appeal granted; appeal allowed; sentence quashed and replaced with imprisonment for time served: [2022] EWCA Crim 986.
2. Crown Court at York: On 30 May 2022 HHJ Morris sentenced the applicant, following a guilty plea to sexual assault, to three months’ immediate imprisonment.