R v BGO

A sentencing court must not impose a sentence for historical offending which may exceed the maximum penalty available when the offence was committed. Where the offence period crosses a legislative change and its timing has not been determined, the offender must receive the benefit of that uncertainty.

When sentencing an adult for offending committed as a child, the court must give proper weight to the historic youth sentencing limit. Any substantial increase from that limit requires careful explanation. Guideline categorisation must follow the indicators in the applicable guideline. Grooming may aggravate rape but is not, without more, an indicator for the higher category under the adult rape guideline.

The appellant was convicted at Nottingham Crown Court of two indecent assaults, attempted rape and two rapes committed in the 1980s against two child complainants. He was aged 16 or 17 at the time of the rape and attempted-rape offences. On 22 December 2022, he received consecutive lead terms producing a total of 14 years’ imprisonment.

He appealed against sentence. The central issues were whether the eight-year sentence for attempted rape could exceed the maximum applicable at the uncertain date of that offence, the significance of his youth at the time, the correct guideline category for one rape, and totality.

1. Appeal allowed. The court quashed the eight-year sentence for attempted rape and substituted ten months’ imprisonment, concurrent with the four-year sentence for rape. The total sentence was reduced from 14 years to ten years’ imprisonment.

2. The attempted rape occurred after the appellant turned 16, but the indictment period crossed the date on which its adult maximum sentence increased from seven years’ imprisonment to life. The judge had made no finding as to which maximum applied. The eight-year sentence therefore exceeded, or might have exceeded, the statutory maximum. Further, the historical youth limit was 12 months’ detention. Although R v Ahmed [2023] EWCA Crim 281 recognised that an adult sentence for child offending might sometimes exceed the contemporaneous youth limit, an increase to eight years could not be justified without careful explanation.

3. The rape in count 7 should have been the lead offence because it carried a life maximum and no equivalent youth detention limit. The applicable rape guideline placed it in category 3B, not 3A. Grooming was not a category 3A indicator under that guideline, although it aggravated the offending. Taking account of the historic context, the guideline, aggravating features, mitigation, totality and a one-third reduction for youth, four years was appropriate. The concurrent sentences for the indecent assaults remained unchanged.

4. The six-year sentence for the separate rape of the second complainant remained consecutive. It already reflected substantial reductions for totality and youth. The resulting aggregate sentence of ten years was appropriate.

• Court of Appeal (Criminal Division) — Allowed the appeal against sentence, quashed the sentence on count 5, substituted ten months’ imprisonment concurrent with count 7, and reduced the total sentence to ten years’ imprisonment.
• Nottingham Crown Court — Following convictions on 4 November 2022, sentenced the appellant on 22 December 2022 to a total of 14 years’ imprisonment.