R v Martin Bayes

A sentencing judge may select a lead offence and impose a sentence reflecting the offender’s overall criminality, provided that totality is observed and aggravating conduct is not counted twice. An appellate court will not interfere where that approach produces a sentence which is not manifestly excessive.

A sentence exceeding the applicable statutory maximum is unlawful. A purported correction under Sentencing Act 2020 section 385 is ineffective unless made in open court. A victim surcharge must also be quashed where the condition in the applicable surcharge order is not met.

The applicant was convicted at the Crown Court at Luton of 16 offences of sexual offending against six children over approximately 20 years. The convictions included rape, indecent assaults, sexual assaults, and perverting the course of justice.

He received an extended sentence of 27 years, comprising 22 years’ custody and a five-year extended licence period. He renewed an application for leave to appeal against sentence after the single judge refused leave. His substantive grounds challenged the guideline placement of the rape, the uplift for the remaining offending, and the treatment of acquittals and victim impact evidence.

The court also considered two sentences above the statutory maximum and an unlawful victim surcharge order.

1. The court refused leave to appeal on the substantive sentencing grounds. The judge had properly used the rape as the lead offence, applied the current sentencing regime with the applicable historic maximums, and applied totality. A 15-year term for the rape, followed by a seven-year uplift for the other convictions, did not amount to double counting and was not manifestly excessive. The sentencing judge had sentenced only for the offences of conviction; the grave harm caused by those offences could not realistically be apportioned with precision from other allegations.

2. The court granted limited leave to correct technical errors. The 12-year sentences for indecent assault on counts 3 and 7 exceeded the maximum of ten years. The judge’s attempted variation under Sentencing Act 2020 section 385 was ineffective because it had not been announced in open court. Applying R v Leitch and Others [2024] EWCA Crim 563, the court quashed those sentences and substituted concurrent ten-year terms.

3. The substituted terms did not affect the overall extended sentence of 27 years. The court also quashed the £170 victim surcharge because counts 1 and 2 predated 1 October 2012, so the condition in Article 7(2) of the Criminal Justice Act 2003 (Surcharge) Order 2012 (SI 2012/1696) was not met. The appeal was allowed only to that limited extent.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 847, refused leave on the substantive challenge to sentence but allowed a limited appeal to substitute lawful sentences on two counts and quash the victim surcharge.

• Crown Court at Luton — Following conviction on 22 May 2023, imposed on 30 May 2023 an extended sentence of 27 years, comprising 22 years’ custody and a five-year extended licence period.