R v Jason Newman

On an appeal against sentence, the decisive question is whether the sentence actually imposed is manifestly excessive. Sentencing is an evaluative exercise, not an arithmetical one. An error in calculating a guilty-plea reduction does not justify intervention unless the resulting sentence is manifestly excessive.

Where concurrent sentences are imposed for multiple serious offences, totality requires the overall sentence to reflect the full gravity of the offending. Multiple high-culpability features may justify an uplift above the guideline starting point. Cognitive impairment may reduce culpability only where it is sufficiently connected to the offending, although its effect on the burden of custody may also be relevant.

The appellant appealed, with leave, against a total sentence of 41 months’ imprisonment imposed at the Crown Court at Swindon for making indecent photographs of a child, causing or inciting a child to engage in sexual activity, and sexual activity with a child.

The offences involved repeated sexual conduct towards C1, a vulnerable child with complex needs, together with the taking and retention of indecent images. The appellant pleaded guilty on the first day fixed for trial, after C1 had already been cross-examined at a section 28 hearing.

The appeal alleged that insufficient mitigation had been allowed for the appellant’s very low intellectual functioning and that there had been a mathematical error in applying five per cent credit for the late pleas. The central issue was whether the total sentence was manifestly excessive.

1. Appeal dismissed. The total sentence of 41 months’ imprisonment was not manifestly excessive.

2. The applicable definitive guideline placed the section 9 and section 10 offences in category 2A. It gave a starting point of three years’ custody and a category range of two to six years for a single offence. The appellant’s offending involved several culpability A features: grooming, abuse of trust, recording and retaining sexual images, a substantial age disparity, and deliberate targeting of a vulnerable child.

3. The court accepted that the appellant’s intellectual impairment was relevant mitigation. Under the guideline for offenders with mental, developmental or neurological impairments, culpability may be reduced only where there is a sufficient connection between the impairment and the offending. Relevant expert evidence must be considered, and impairment may also make custody more onerous.

4. The Recorder had considered the appellant’s impairment and other mitigation. Given the multiple serious offences and the culpability A factors, a pre-credit starting point of about four and a half years would have been justified. The Recorder’s lower starting point of three and a half years therefore demonstrated that substantial mitigation had been allowed.

5. The alleged error in reducing 42 months by five per cent did not determine the appeal. Sentencing is an art rather than a science. The court had to assess the sentence actually imposed, and the concurrent sentences properly reflected totality and the overall gravity of the offending.

• Court of Appeal (Criminal Division). The appeal against sentence was dismissed.
• Crown Court at Swindon. On 14 September 2023, the appellant received concurrent sentences, producing a total of 41 months’ imprisonment.