R v Alan Ludar-Smith

For multiple serious sexual offences, a sentencing court may impose consecutive sentences or impose a sentence on one count reflecting the total offending and treat the remaining counts as aggravating. Whichever method is used, it must make a final adjustment so that the aggregate sentence is just and proportionate to the totality of the offending.

Significant psychological harm to a child complainant may justify having regard to the higher harm-category range in the applicable sentencing guideline, even if the harm is not found to be severe. Relevant previous sexual offending and other aggravating features may require a substantial uplift, but they do not displace the totality principle.

The appellant pleaded guilty at Cambridge Crown Court to three sexual assaults of a child under 13. The offences occurred on separate occasions when the complainant was aged between 9 and 11 and the appellant was a trusted family friend.

The sentencing judge imposed three consecutive terms of 12 months’ imprisonment, totalling three years. The appellant appealed with leave on the ground that the total sentence was manifestly excessive. He submitted that insufficient weight had been given to totality and to the fact that this offending pre-dated offending for which he had already served a substantial custodial sentence.

The central issue was whether the aggregate sentence was just and proportionate for the three offences, their aggravating features, the complainant’s continuing psychological harm, and the appellant’s guilty pleas.

1. Appeal allowed. The aggregate sentence of three years’ imprisonment was manifestly excessive. The court quashed the sentences on all three counts and substituted consecutive terms of nine months’ imprisonment, producing a total of two years and three months.
2. Each offence was serious, and the guideline starting point and range concerned a single offence. A course of conduct comprising separate serious sexual offences may properly attract consecutive sentences. Alternatively, a judge may impose a sentence on one count that reflects the total offending and treat the other counts as aggravating. In either event, the aggregate sentence must be checked and adjusted where necessary to ensure that it is just and proportionate to the offending as a whole.
3. The appellant’s relevant prior sexual offending against a child required a substantial uplift from the chosen starting point. Other aggravating features included offending against a young child in her home, abuse of her trust and naivety, and the continuing psychological harm recorded in her victim personal statement.
4. The court considered that, although severe psychological harm would have placed a single offence in Category 1B, significant psychological harm could justify having regard both to the Category 2B range and to Category 3B. The offending was capable of being viewed as on the cusp of those categories.
5. A just and proportionate pre-credit sentence was about 33 months’ imprisonment. Allowing approximately 15 to 20 per cent credit for the guilty pleas resulted in an appropriate total of two years and three months.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted consecutive sentences of nine months on each count, totalling two years and three months’ imprisonment.
• Crown Court at Cambridge: Following guilty pleas to three sexual assaults of a child under 13, imposed consecutive sentences of 12 months on each count, totalling three years’ imprisonment.