R v SSH

On an appeal against sentence, the sentencing judge must identify the relevant guideline category and explain the reasons for the sentence and its effect. An offence category must reflect the conduct charged; touching the upper thighs, including up to and beneath clothing, fell at the top of category 3 rather than category 2, whereas touching a naked breast fell within category 2. Sexual activity with a family member inherently involves an abuse of trust, so that feature must not be counted again as an aggravating factor. The totality principle requires a just and proportionate sentence for the offending as a whole, but imposes no inflexible structure for concurrent and consecutive sentences. A victim surcharge under the applicable order was lawful only where the relevant temporal and sentencing conditions were met.

The appellant was convicted in the Crown Court at Leeds of eight offences of sexual activity with a child family member, contrary to Sexual Offences Act 2003, section 25(1), and one sexual assault contrary to section 3 of that Act. The offences involved his teenage stepdaughter and occurred between 2012 and 2019. He received an aggregate sentence of eight years’ imprisonment and a Sexual Harm Prevention Order. He appealed against sentence, contending that some offences had been placed in the wrong guideline categories, that the sentence was excessive, and that the sentencing remarks were inadequate. The central issues were the proper categorisation of the offending, application of the totality principle, double counting of abuse of trust, and the legality of the victim surcharge.

1. Appeal allowed in part. The sentence of eight years’ imprisonment was quashed as manifestly excessive and replaced by a total sentence of six years. The sentences were structured with counts 5 and 6 as lead offences, each receiving six years concurrently, with the remaining terms concurrent as specified by the court.
2. Under section 52 of the Sentencing Act 2020, the sentencing judge had to explain both the reasons for the sentence and its effect. The judge also had to identify the guideline category. If considering a higher category than that advanced by the prosecution and accepted by the defence, the judge should give the defence an opportunity to make submissions.
3. Counts 4 and 7, involving touching up to and beneath the complainant’s clothing, were at the top end of category 3, not category 2. Counts 5 and 6, involving touching a naked breast, fell within category 2, although at the lower end. All the offences were culpability A because of the significant age disparity, but no additional high-culpability factors had been identified.
4. The seven-year duration of the offending was aggravating. Abuse of trust inherent in sexual activity with a family member was already built into the offence and must not be treated as an additional aggravating feature, to avoid double counting.
5. The totality principle required the overall sentence to be just and proportionate to all the offending. It did not prescribe a single sentencing structure. A lead offence with concurrent lesser sentences, proportionately reduced consecutive sentences, or a combination could be used, provided the aggregate sentence properly reflected the total criminality.
6. The Victim Surcharge Order was unlawful. Under the Criminal Justice Act 2003 (Surcharge) (No. 2) Order 2007, a surcharge was required only where the sentence included a fine, and then in the fixed sum of £15. The relevant offending partly predated the applicable provisions and no fine had been imposed. The £120 surcharge was therefore quashed.

• Court of Appeal (Criminal Division): The appeal against sentence was allowed to the extent that the eight-year sentence was quashed and replaced with six years’ imprisonment. The Victim Surcharge Order of £120 was also quashed.
• Crown Court at Leeds: Following conviction on 15 February 2023, the appellant was sentenced on 3 April 2023 to eight years’ imprisonment and made subject to a Sexual Harm Prevention Order.