R v TG

Where there is doubt whether offending falls within a higher sentencing-guideline category, a sentence may still be upheld if it is justified on the assumption that the lower category applies. Significant upward adjustments may reflect multiple culpability factors, aggravating features and separately indicted offending forming a distinct course of conduct. The total sentence must remain proportionate and reflect the totality of the offending. Concurrent sentences or no separate penalty may be imposed where the lead sentence properly captures the overall criminality. A dangerousness finding and extended licence period may be upheld where supported by the nature of the offending and the available risk assessment.

The appellant pleaded guilty in the Crown Court at Worcester to raping his five-year-old daughter, filming and distributing the rape, and offences involving indecent images of children. The sentencing judge imposed an extended determinate sentence of 23 years and nine months, comprising 15 years and nine months’ custody and an eight-year extension period.

On appeal, the appellant argued that the rape should have been placed in Category 2A rather than Category 1A, and that the resulting sentence was manifestly excessive. The central issue was whether the sentence could be justified through an alternative sentencing route and whether it was proportionate to the overall offending.

1. Appeal dismissed. The sentence of 23 years and nine months, comprising a custodial element of 15 years and nine months and an eight-year extension period, was not manifestly excessive.
2. The court recognised that there was scope for doubt about whether the combination of harm factors justified moving the rape from Category 2A to Category 1A. That uncertainty did not affect the result. Even assuming Category 2A, the sentence required a very significant upward adjustment for multiple culpability factors, including significant planning, drugging the victim and abuse of trust, and for aggravating factors including targeting a child, offending in the child’s home and ejaculation.
3. The filming and distribution of the rape were separately indicted and represented a distinct course of conduct. They were undertaken to obtain access to a group and website concerned with extreme sexual abuse of children. The sentencing judge was therefore not required to treat that conduct merely as a culpability factor under the rape count. The sentence was entitled to reflect the separate offending, producing a sentence equivalent to the top of the Category 1A range for counts 1 to 3.
4. The judge was entitled to treat count 1 as the lead offence and impose concurrent sentences or no separate penalty for the remaining offences, provided that the custodial element reflected the totality of the offending. The additional offending, involving the distribution and possession of numerous highly serious images of other children, justified the further three-year addition. After the 25% reduction for the early guilty plea, the custodial element was proportionate.
5. Having regard to the nature of the offending and the pre-sentence report’s assessment of a high risk of serious harm from further offending, the judge was entitled under the relevant provisions of Sentencing Act 2020 to find the appellant dangerous and impose an eight-year extended licence period.

• Court of Appeal (Criminal Division): on 22 June 2023, the appeal against sentence was dismissed. [2023] EWCA Crim 783
• Crown Court at Worcester: on 8 December 2022, an extended determinate sentence of 23 years and nine months was imposed.