R v Anthony Douglas Whitelam

When sentencing an adult for historic offending committed as a child, the court should identify the sentence likely to have been imposed under the historic regime. Borstal training may properly be reflected by a modern custodial sentence of up to four years. Later offending may show that the conduct was not an isolated childhood lapse and justify greater culpability. Totality does not require concurrent sentences or a downward adjustment in every case. Consecutive sentences may be imposed for wholly distinct offending against different victims, provided the overall sentence is just and proportionate.

Following a trial at the Crown Court at Derby, the appellant was convicted of 13 historic sexual offences against two complainants. He was sentenced to a total of 13 years’ imprisonment, comprising consecutive sentences for offending against the two complainants.

By leave of the single judge, he appealed against sentence. The issues were whether the sentence for offending committed while he was a child unlawfully treated Borstal training as equivalent to modern imprisonment, and whether the overall sentence was manifestly excessive or contrary to the principle of totality.

The appeal against sentence was dismissed.

1. Historic child offending. The court applied the guidance in R v Nazir Ahmed and Others [2023] EWCA Crim 281. Borstal training comprised detention for up to two years followed by supervision for a further two years. It could properly be reflected by a modern custodial sentence of up to four years. The court was slow to treat that guidance as less authoritative merely because the point had been common ground in R v Nazir Ahmed and Others. The sentencing judge had made no error of principle.
2. The sentence for the offending against C1 was not manifestly excessive. The maximum sentence for the historic indecent assault offence was ten years. The judge was entitled to impose four years to reflect the totality of the offending against C1. In sentencing for historic offending committed as a child, the likely sentence at the time is the starting point, but it need not be the end point. Subsequent offending may show that the conduct was not an isolated childhood lapse and that culpability was greater than would have appeared at the time. The court must also have regard to the purposes of sentencing in section 57 of the Sentencing Code.
3. Totality. The guidance in R v Nazir Ahmed and Others did not require concurrent sentences whenever offending straddled childhood and adulthood. Concurrent sentences may be appropriate where offending against the same victim crosses an age threshold or offences form a linked series. Where offending against different victims, separated by about 20 years, is wholly distinct, consecutive sentences remain available. Totality does not invariably require a downward adjustment. The question is whether the overall sentence is just and proportionate.
4. The sentencing judge’s reference to the earlier offending not being a childhood lapse was permissible. Although the judge also made an observation about the appellant’s sexuality, the Court of Appeal found no evidence that sexuality had contributed to the offending and concluded that the observation had not formed part of the reasoning supporting the sentence.

• Court of Appeal (Criminal Division) — On 13 October 2023, the appeal against sentence was dismissed: [2023] EWCA Crim 1204.
• Crown Court at Derby — The appellant was convicted on 10 March 2023 and sentenced on 1 June 2023 to 13 years’ imprisonment.