BPO v R

When sentencing an adult for offending committed as a child, the starting point under the Children guideline is the headline sentence likely to have been imposed shortly after the offending. The assessment reflects the child offender’s culpability and harm, not the subsequent executive administration of the sentence.

A sentencing court should not ordinarily adjust a determinate term to reflect either historic or current early-release provisions. The specific treatment of Borstal training in R v Ahmed and others [2012] EWCA Crim 281 does not create a general exception requiring such a comparison.

The appellant, aged between 14 and 19 when the offences were committed, was convicted of seven historic rapes of his younger half-sisters. He was sentenced in the Crown Court at Cambridge to concurrent terms producing a total of five years’ imprisonment.

He appealed on the basis that the sentence was excessive and that it should have been reduced because current early-release provisions required him to serve two-thirds, rather than the one-half stated initially by the sentencing judge. The central issue was whether the historic-child-offender sentencing approach required the court to take account of changes in early-release arrangements.

1. The renewed application for leave on ground 1 was refused and the appeal on ground 2 was dismissed. The five-year total sentence was not arguably manifestly excessive.

2. The court held that the starting point in sentencing an adult for offences committed as a child, under R v Ahmed and others [2012] EWCA Crim 281, is the sentence likely to have been imposed shortly after the offending. That is the court-imposed, or headline, sentence. It measures culpability and harm; it is not reduced or otherwise altered by reference to the way in which the executive might have administered release.

3. The established principle confirmed in R v Patel [2021] EWCA Crim 231 was that early-release provisions should not ordinarily affect the length of a determinate sentence. The principle reflects the constitutional division between judicial sentencing for the individual offence and executive or legislative decisions governing release. It applied equally to the present historic-offending exercise.

4. Paragraph 31 of R v Ahmed and others concerned the distinctive historic structure of Borstal training, which combined detention and supervision. It was not a general rule requiring a comparison of historic and current release regimes. Such a comparison would in any event require impermissible speculation about discretionary historic release decisions.

5. The sentencing judge had correctly applied Ahmed and rightly made no adjustment following the change effected by section 130 of the Police, Crime, Sentencing and Courts Act 2022. Given seven rapes of younger family members, the judge was entitled to conclude that historic section 53(2) detention, rather than Borstal training, would probably have been imposed. The court also recorded 360 days’ qualifying-curfew credit, subject to correction if the underlying period proved mistaken.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 517, refused renewed leave to appeal against sentence on ground 1 and dismissed the appeal on ground 2.
• Crown Court at Cambridge — On 9 June 2023, imposed concurrent sentences totalling five years’ imprisonment for the historic rape offences.