R v Everet Winston Higgins

Sentencing for historic offences must remain structured and analytical. The maximum sentence is that available when the offence was committed, while current guidelines for equivalent offences may be used in a measured and reflective way. Instinct may provide a cross-check, but cannot displace the guidelines.

A sentencing judge may find severe psychological harm from the evidence as a whole; an independent psychological report is not mandatory. Totality may require consecutive sentences for separate offending against different victims. Under the Criminal Justice Act 2003, the release rules for a special custodial sentence differ from those for a determinate term, and the applicable statutory maximum is decisive.

After changing his pleas to guilty, the applicant was sentenced at Bristol Crown Court on 14 September 2022 by HHJ Ambrose. He received eight years’ imprisonment for two historical indecent assaults against C1. For three sexual offences against C2, he received a consecutive special custodial sentence under section 278 of the Sentencing Act 2020, comprising six years’ custody and one year on licence.

The single judge refused permission to appeal. The applicant renewed his application, challenging the assessment of seriousness, totality, the finding of severe psychological harm, the treatment of psychological evidence, and the alleged mechanistic application of the Sentencing Guidelines. The court also considered the correct release calculation for the two constituent sentences.

The court refused the renewed application for permission to appeal against sentence. The sentence itself was not altered, but the court clarified the applicable custodial period for the eight-year determinate term.

1. Sentencing framework. For the historical offences, the maximum available sentence was that applicable when the offences were committed. The court applied the approach in R v Forbes [2016] EWCA Crim 1388; [2017] 1 WLR 53. Current guidelines for equivalent offences could be used in a measured and reflective manner. The sentencing court had to assess seriousness by culpability and harm and avoid double counting. The guidelines could not be displaced by an unstructured appeal to instinct or overall feel.
2. Seriousness and totality. The judge was entitled to treat the two assaults against C1 as sufficiently serious to justify a combined starting point of nine and a half years. The offences against C1 and C2 involved different victims and different periods of offending, so consecutive sentences were justified. The concurrent treatment of counts 12 and 13 and the reduction of the sentence on count 10 properly reflected totality.
3. Evidence of harm and mitigation. A sentencing judge may determine the nature and extent of psychological harm from all the material available. The Sentencing Guidelines do not require an independent psychological report. The judge was entitled to rely on C1’s victim personal statement and supporting evidence. He had also considered the applicant’s psychological report and was entitled to conclude that the evidence did not reduce culpability; some findings instead reinforced the seriousness of the offending. The sentence was not manifestly excessive.
4. Release calculation. The court rejected the allegation that the sentence had been structured to impose two-thirds of each consecutive term. Section 244A of the Criminal Justice Act 2003 applied to the seven-year special custodial sentence, requiring two-thirds of the six-year custodial term to be served before release on licence. However, section 244ZA applied only where the underlying offence was listed in Schedule 15 and carried a maximum penalty of life imprisonment. Under section 14 of the Sexual Offences Act 1956, the offences against C1 carried a ten-year maximum and therefore fell outside section 244ZA. The requisite custodial period for the eight-year term was consequently one half, not two-thirds. That clarification did not affect the sentence imposed.

• Court of Appeal (Criminal Division) — The renewed application for permission to appeal against sentence was refused. The court clarified that half, rather than two-thirds, of the eight-year determinate term was the requisite custodial period: [2023] EWCA Crim 644.
• Crown Court at Bristol — HHJ Ambrose sentenced the applicant on 14 September 2022 to eight years’ imprisonment for the offences against C1 and a consecutive special custodial sentence of six years’ custody plus one year on licence for the offences against C2.