R v AIW

An extended sentence does not follow automatically from a finding that an offender is dangerous. The sentencing court must decide whether the identified risk requires the protection and management available under the extended licence regime, or can adequately be addressed by a standard determinate sentence and other measures.

The risk assessment is made at the date of sentence, on the assumption that the offender is not in custody. It may take account of all relevant evidence bearing on future risk. A long determinate sentence may make an extended sentence unnecessary where it will keep the offender in custody until very elderly, but tentative prospects of rehabilitation do not establish that risk will materially reduce.

R v AIW was an appeal against sentence following guilty pleas in the Crown Court at Liverpool to 16 offences. They included sexual offences against the appellant’s very young step-granddaughter, the taking of indecent images of her, and offences involving downloaded indecent and extreme pornographic images.

On 23 October 2023, the judge imposed extended sentences of 19 years on two counts of assault by penetration. Each comprised 14 years’ custody and a five-year extended licence period. Concurrent sentences were imposed on the remaining counts.

The appellant challenged the finding of dangerousness, the necessity for an extended sentence, and the length of the custodial term. The central issue was whether the assessed risk could adequately be managed without an extended sentence.

1. Appeal dismissed. The custodial term was neither manifestly excessive nor disproportionate. The two penetration offences were separated by 21 months and, considered individually, attracted sentences in the lower part of the applicable category range. The judge’s uplift for the remaining offences properly reflected sustained and severe abuse of a very young and vulnerable child, together with the other offending.

2. Totality required a just and proportionate overall sentence. The calculation of an uplift for a series of disparate offences was not a scientific exercise. The 21-year notional sentence after a trial was justified before credit for guilty pleas reduced the custodial term to 14 years.

3. The judge was entitled to find the appellant dangerous. Applying the approach in R v AYO [2022] EWCA Crim 1271, risk had to be assessed at the date of sentence on the assumption that the offender was not in custody, while taking account of all relevant predictive evidence. The pre-sentence report’s assessment was grounded in the facts, including entrenched sexual behaviour, planning, deception, sexual preoccupation, isolation, loss of family support and the appellant’s own account of escalation.

4. Dangerousness did not itself make an extended sentence inevitable. However, this was not a case in which a standard determinate sentence would keep the appellant imprisoned until very elderly. The material about possible rehabilitative work was tentative and did not show that his propensity or risk would materially reduce. The judge was entitled to conclude that the risks on release required the intervention and management provided by the extended licence regime, which addressed matters distinct from the Sexual Harm Prevention Order and Restraining Order.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed in R v AIW [2024] EWCA Crim 972.
• Crown Court at Liverpool: On 23 October 2023, following guilty pleas to 16 counts, the appellant received extended sentences of 19 years on two counts of assault by penetration, comprising 14 years’ custody and a five-year extended licence period.