WJ v R

Section 278 of the Sentencing Act 2020 does not require a custodial sentence for every Schedule 13 offence. It governs the form of sentence where the court has decided that custody is appropriate.

A sentence of no separate penalty is permissible only where the sentence for other offences fully and adequately reflects the additional criminality. Serious offences that cross the custody threshold ordinarily require sentences reflecting their distinct gravity. Totality may be achieved by adjusted consecutive terms, or by concurrent terms alongside an uplifted lead sentence.

The applicable release provisions do not affect the proper length of the custodial term. On an appeal against sentence, severity is assessed by comparing the overall substituted sentence with the overall sentence below.

WJ was convicted at the Crown Court at Snaresbrook of four historic indecent assaults on his son and one count of buggery. The offending occurred between 1975 and 1982, when the complainant was aged between five and 11. The judge imposed a special custodial sentence of 17 years on the buggery count, but imposed no separate penalty on the remaining counts on grounds of totality.

The Single Judge refused leave to appeal against the lead sentence. The Registrar had, however, raised whether the sentences of no separate penalty on two penetration counts were unlawful under section 278 of the Sentencing Act 2020. The court granted leave and considered the proper construction of section 278, the Totality Guideline, and the lawful restructuring of the sentences without increasing the appellant’s overall punishment.

1. Appeal allowed in part. The court quashed the sentences of no separate penalty on Counts 1 to 4 and substituted concurrent custodial sentences. The appeal against the unchanged 17-year special custodial sentence on Count 5 was dismissed.
2. Section 278 of the Sentencing Act 2020 does not compel custody whenever an adult is convicted of a Schedule 13 offence. The words “where the court imposes a sentence of imprisonment” address the position after the court has decided that custody is appropriate. A non-custodial sentence remains legally possible, though exceptional for offences of this seriousness. Where custody is imposed and the other statutory conditions are met, the sentence must include the appropriate custodial term and a one-year licence period. The court adopted the guidance on the predecessor provision in R v LF [2016] EWCA Crim 561.
3. The judge nevertheless erred in imposing no separate penalty on Counts 1 to 4. Under section 59(1)(a), the sentencing court had to follow the relevant guidelines unless contrary to the interests of justice. No separate penalty is appropriate only if the other sentence fully and adequately reflects the additional criminality. These repeated and serious sexual offences, including penetration, crossed the custody threshold and warranted substantial sentences. Totality should instead have been achieved through adjusted consecutive sentences, or an uplifted lead sentence with shorter concurrent sentences.
4. Under section 11(3) of the Criminal Appeal Act 1968, the comparison is between the overall sentence below and the overall substituted sentence. The appellant was not dealt with more severely merely because the court imposed proper sentences on the other counts while maintaining the longer concurrent lead sentence.
5. On Counts 1 and 2, the court imposed five years’ imprisonment. On Counts 3 and 4, it imposed special custodial sentences of six years, comprising five years’ custody and one year on licence. All ran concurrently with each other and with the Count 5 sentence. Consistently with R v LN [2023] EWCA Crim 371, release eligibility is after two-thirds of the custodial term of the longest concurrent sentence.

• Court of Appeal (Criminal Division): Leave to appeal was granted. The court allowed the appeal only to substitute lawful concurrent sentences on Counts 1 to 4, while dismissing the challenge to the Count 5 sentence: [2023] EWCA Crim 789.
• Court of Appeal (Criminal Division), Single Judge: Leave to appeal against sentence was refused.
• Crown Court at Snaresbrook: On 12 April 2022, WJ was convicted by a jury. On 4 November 2022, he received a 17-year special custodial sentence on Count 5 and no separate penalty on Counts 1 to 4.