R v AJ

In sentencing for serious and repeated sexual offending against children, an absence of relevant previous convictions may carry little mitigating weight. A sentencing judge may rely on disparity of age and the targeting of a particularly vulnerable child when categorising an offence, provided those features are not intrinsic to the offence or counted twice.

A challenge based on double-counting fails where it misstates the features on which the sentencing judge actually relied. The assessment of dangerousness is primarily one for the trial judge, who has heard the evidence. An appellate court will not interfere without a material error of principle or an arguable basis for concluding that the assessment was wrong.

The applicant was convicted at Snaresbrook Crown Court of numerous sexual offences against four children, committed over several years. The offences included sexual activity with child family members, assaults by penetration of a child under 13, sexual assaults of a child under 13, and sexual activity with a child.

On 20 February 2023, the trial judge imposed concurrent sentences, including extended determinate sentences of 14 years on two counts. The applicant renewed an application for leave to appeal against sentence after a single judge refused leave. He alleged insufficient mitigation for his lack of relevant convictions, double-counting in categorisation, and an unjustified finding of dangerousness.

1. The renewed application for leave to appeal against sentence was refused. The sentence disclosed no error of principle and was not manifestly excessive.

2. The absence of relevant previous convictions could not be a significant mitigating factor in sentencing this applicant for a serious series of sexual offences against children. The scale, persistence and gravity of the offending materially limited the weight of that factor.

3. The asserted double-counting was not established. For the Sexual Offences Act 2003 section 25 offences, the sentencing judge had not relied on abuse of trust. He was entitled to find that the offending targeted particularly vulnerable children. In any event, the substantial disparity of age independently justified categorisation at culpability A. A parental relationship is not intrinsic to section 25 offending, which may be committed by, for example, a relatively young sibling.

4. The judge had not treated any child as particularly vulnerable by reason of extreme youth when assessing the section 6 and section 7 offences. Nor had he impermissibly double-counted multiple incidents. Abuse of trust was specifically relied on only for counts 11 and 12, for which it was appropriate.

5. The finding that the applicant was dangerous was a judgment principally for the trial judge, who had heard the evidence. The Court found no material error in that assessment, notwithstanding the criticisms made of the pre-sentence report. The extended determinate sentences were therefore available. Given the repeated offending against several young children over a substantial period, the overall sentence was neither harsh nor severe.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against sentence refused in [2023] EWCA Crim 1345.

• Crown Court at Snaresbrook: following convictions on 17 October 2022, the applicant was sentenced on 20 February 2023 to concurrent sentences, including extended determinate sentences of 14 years on two counts.