R v Ian Hewitt

On a sentence appeal, the court assesses whether the overall sentence is manifestly excessive by reference to the totality of the offending. A serious offence may be used as the lead offence, with consecutive terms imposed to reflect distinct and sustained criminality, provided the aggregate sentence remains just and proportionate.

Where the contemplated offending involved serious sexual harm but no contact offence occurred, and the children were fictitious, the sentence should include a significant downward adjustment from the complete-offence sentence. A guideline starting point for a single offence may also be increased where the lead offence reflects associated serious offending.

The appellant pleaded guilty in the Crown Court at Chester to numerous offences involving indecent images of children, sexual communications with persons believed to be children, attempted sexual offences, and encouragement of the rape of a child under 13. On 7 November 2023 HHJ Leeming imposed consecutive and concurrent sentences producing four years of standard imprisonment, followed by a six-year special custodial sentence and one year on extended licence.

He appealed by leave against sentence. He argued that the starting point for the lead count was too high, that insufficient reduction was made because no contact offence occurred and the children were fictitious, and that totality did not justify the overall sentence or consecutive terms. The central issue was whether the sentence was manifestly excessive.

1. The appeal against sentence was dismissed. The overall sentence was not manifestly excessive and was just and proportionate to the totality of the offending.
2. On the lead count, the sentencing judge had taken nine years after aggravating and mitigating features from an eight-year starting point, treating the offence as Category 3B offending under the Sexual Offences Guideline, and had reduced that figure to six years for the guilty plea. That approach was arguably generous because there was evidence of planning. Even on the Category 3B basis, a sentence considerably exceeding eight years for the complete offence would have been appropriate, given the serious aggravating features, including offending committed on bail. The judge must therefore have made, and had made, a significant and appropriate downward adjustment to reflect that the offence did not take place and that the children were fictitious.
3. The guideline starting points were for a single offence. Count 13 was properly treated as the lead offence while also reflecting other serious sexual offending, requiring a further increase from the starting point. Consecutive sentences on Counts 1 and 5 were permissible because they reflected associated offending which concurrent sentences would not adequately mark.
4. The sentencing judge had properly considered totality and the aggregate sentence. The offending was sustained and serious, involving the making, possession and distribution of images of very young children, serious sexual communications, and encouragement of rape and other sexual offences. The sentence was accordingly just and proportionate.
5. The special custodial sentence was imposed because the appellant was an offender of particular concern and neither life imprisonment nor an extended sentence was appropriate, pursuant to sections 265 and 278 in Schedule 13 of the Sentencing Act 2020.

• Court of Appeal (Criminal Division): On 4 July 2024, the appeal against sentence was dismissed: [2024] EWCA Crim 822.
• Crown Court at Chester (HHJ Leeming): On 7 November 2023, imposed consecutive and concurrent sentences amounting to four years of standard imprisonment followed by a six-year special custodial sentence and one year on extended licence.