R v HLN

For an extended sentence, the statutory test is a significant risk to members of the public of serious harm through further specified offences. Some continuing risk is insufficient. The sentencing court must assess all available information, including admissions showing insight, the absence of reoffending, the factual basis of the guilty pleas, and the effect of a substantial custodial term.

A complainant who is asleep will ordinarily be highly vulnerable, but vulnerability remains fact-specific. In the sentencing guideline, abuse of trust requires a position of authority or its equivalent; an intimate domestic relationship does not alone meet that meaning.

The appellant pleaded guilty to two rapes of his former partner. The Crown Court imposed concurrent extended sentences of 14 years, comprising 11 years’ imprisonment and three years’ extended licence, after finding him dangerous.

At sentence, the offences were opened on a chronology inconsistent with the basis of plea. The judge treated the appellant’s reaction to that error as demonstrating a lack of remorse. A later hearing under Sentencing Act 2020 section 385 corrected the dating error but did not alter the sentence.

The appellant appealed the harm category, the length of the determinate term and the dangerousness finding. The central issue was whether the statutory threshold for an extended sentence had been properly established.

1. Appeal allowed in part. The court quashed the finding that the appellant was dangerous and substituted a determinate sentence of 11 years’ imprisonment. It did not disturb the length of the custodial term.

2. The complainant was particularly vulnerable due to personal circumstances. A person who is asleep is highly vulnerable, although the assessment remains fact-specific. Here, the complainant was asleep and had lost genital feeling following childbirth complications. The judge was therefore entitled, and right, to place the offending in the relevant harm category.

3. “Abuse of trust” has a specialised guideline meaning. It requires a position of authority or an equivalent relationship, such as one analogous to loco parentis. The domestic setting and cohabitation were proper aggravating features, but did not themselves establish abuse of trust in that sense. Although the judge referred to abuse of trust, the limited increase from the starting point showed that no practical double counting had occurred.

4. The totality reduction did not disclose an error of principle or make the sentence manifestly excessive. A larger reduction was open to another sentencer, but the judge had addressed totality and made a reduction.

5. Under Sentencing Act 2020 section 308, the court had to find a significant risk of serious harm through further specified offences. The assessment was unfairly affected by an erroneous account of the offences and by treating the appellant’s reaction to that error as absence of remorse. Relevant contrary matters included his previous good character, admissions to others, no reoffending during the three-year delay before sentence, the relationship-specific nature of the offending, and the substantial custodial term. On the correct assessment there was no significant statutory risk. The possibility of some risk could not justify an extended sentence.

• Court of Appeal (Criminal Division): R v HLN [2023] EWCA Crim 1356. The appeal against sentence was allowed to the extent that the dangerousness finding and extended licence were quashed. A determinate sentence of 11 years’ imprisonment was substituted.
• Crown Court: On 5 December 2022, the appellant received concurrent extended sentences of 14 years for two rapes, comprising 11 years’ imprisonment and three years’ extended licence. A section 385 review hearing on 12 January 2023 identified an error concerning the dates of the offences but did not alter the sentence.