R v Jamie Rushton

An appellate court will not interfere with an immediate custodial sentence merely because a suspended sentence was available. The question is whether the sentencing judge’s evaluative conclusion that immediate custody was required was reasonably and properly open on the seriousness of the offence, the offender’s mitigation, and the evidence of remorse and insight.

New grounds of appeal should ordinarily be advanced by an application to amend the notice of appeal which identifies sufficient reasons for amendment. The court may nevertheless consider whether the proposed grounds are arguable.

The applicant pleaded guilty in the Crown Court at Wood Green to sexual assault contrary to section 3 of the Sexual Offences Act 2003. He was sentenced to 18 months’ imprisonment. A count of voyeurism was ordered to lie on the file.

After a single judge refused leave to appeal against sentence, the applicant sought a 27-day extension of time to renew his application. He challenged the refusal to suspend the sentence and the treatment of his personal mitigation. In lengthy further grounds, he also alleged unfairness in the Newton hearing and challenged the proportionality of a 10-year sexual harm prevention order.

The central issue was whether any proposed ground gave an arguable basis for appellate intervention.

1. The court refused the extension of time, the renewed application for leave to appeal against sentence, and any informal application to amend the notice of appeal.

2. The applicant did not challenge the 18-month term. His challenge was to its immediate effect. The court held that the sentencing judge had considered the psychological material, previous good character, relevant sentencing guidance, and the seriousness of the offending. Having heard the applicant at the Newton hearing, the judge was entitled to find an absence of genuine remorse and acceptance of wrongdoing. Immediate imprisonment was therefore a conclusion reasonably and properly open to the judge.

3. The proposed complaint about the Newton hearing was misconceived. The sentencing judge had made clear that the applicant was not penalised for failing in that hearing. The finding of a lack of remorse was not sensibly open to challenge.

4. The challenge to the sexual harm prevention order was also unarguable. Its terms reflected the circumstances of the offence and the images found on the applicant’s devices. The court found no conceivable basis for saying that any condition was disproportionate or otherwise inappropriate.

5. Under R v James [2018] 1 WLR 2749, the new grounds should have been advanced by an application to amend the notice of appeal supported by sufficient reasons. The court nevertheless considered their arguability and rejected them.

• Court of Appeal (Criminal Division) Refused the renewed application for leave to appeal against sentence, the extension of time, and any informal application to amend the notice of appeal: [2023] EWCA Crim 1344.

• Single judge of the Court of Appeal Refused leave to appeal against sentence. The applicant then renewed the application.

• Crown Court at Wood Green The applicant pleaded guilty on 9 December 2022 and, on 30 May 2023, was sentenced to 18 months’ imprisonment for sexual assault. A count of voyeurism was ordered to lie on the file.