R v BXP & Anor

In sentencing multiple sexual offences, the appellate court must assess the sentence in totality. It should not examine each concurrent sentence in isolation. A substantial uplift to a lead sentence after guilty-plea credit may be justified, but the overall sentence must reflect that the lead term may already be near the top of its guideline range and that other concurrent terms can add materially to its practical effect. An overall sentence may therefore be manifestly excessive even where each individual sentence is defensible. A sleeping child’s particular vulnerability may justify a higher harm category without being double counted; foreseeable distress when the child later learns of the offending may also be considered.

BXP and ADK appealed against sentences imposed by the Crown Court at Newcastle-upon-Tyne on 20 November 2023. BXP had pleaded guilty to 13 sexual offences involving children and received an extended sentence comprising 15 years’ imprisonment and a five-year extended licence period. ADK had pleaded guilty to six such offences and received 10 years’ imprisonment and a five-year extended licence period. Both appeals were brought by leave of the single judge.

The appellants challenged the categorisation of harm and argued that the resulting sentences, including uplifts applied after credit for guilty pleas, were manifestly excessive. The central issues were the proper assessment of the sleeping child’s vulnerability and whether the sentences adequately reflected totality.

The court allowed both appeals against sentence.

1. Harm categorisation. The sentencing judge was entitled to place the lead offences involving penetration of the sleeping child in harm category 2. The child’s being asleep made her particularly vulnerable. That circumstance supported the harm categorisation and was not separately used as an aggravating factor. The likely harm when the child later learned what had happened was nevertheless a relevant sentencing consideration.
2. Totality. The court considered the overall sentences rather than interrogating each individual sentence in isolation. BXP’s offending was predatory, extended over a lengthy period, involved children of different ages, included grooming and abuse of positions of trust, and involved recorded offences. ADK had actively participated in the abuse and image-making while also being in a position of trust. A substantial uplift after guilty-plea credit was justified for each appellant.
3. BXP. The sentence for the lead offence was not manifestly excessive when considered alone. However, it was already towards the top of the applicable range, and the concurrent sentences included another sentence similarly near the top of its range. The sentence therefore failed sufficiently to give effect to totality. The determinate term on the lead count was reduced to 13 years, with the five-year extended licence period retained.
4. ADK. The notional sentence before credit for plea was within the applicable harm category range and was not manifestly excessive. Nevertheless, the further uplift, despite the concurrent structure, failed sufficiently to account for totality. The determinate term on the lead count was reduced to eight years, with the five-year extended licence period retained.

The other concurrent sentences, the findings of dangerousness and the extended licence periods were left undisturbed.

• Court of Appeal (Criminal Division) On 5 December 2024, on appeals by leave of the single judge, allowed both appeals and substituted reduced determinate terms. [2024] EWCA Crim 1659
• Crown Court at Newcastle-upon-Tyne On 20 November 2023, imposed extended sentences of 15 years’ imprisonment plus five years’ extended licence for BXP, and 10 years’ imprisonment plus five years’ extended licence for ADK.