R v AGP

An extended determinate sentence requires evidence satisfying the court that the offender presents a significant risk of serious harm from further specified offences. The burden is not reversed: the offender need not disprove the risk. The court must assess the evidence in totality, including the current offence, offending history and pattern, and the offender’s attitude and other relevant circumstances. A pre-sentence report guides but does not bind the court. An unreasoned conclusion, particularly one inconsistent with a low risk assessment, cannot by itself establish significant risk. Where a potentially relevant Sexual Harm Prevention Order is not considered, the court should explain why it would not adequately manage the risk. If the statutory threshold is not met, the extended sentence must be quashed.

The appellant pleaded guilty in the Crown Court at Canterbury to 14 counts of sexual activity with a child. He was sentenced to an extended determinate sentence of 12 years, comprising 7½ years’ custody and a 4½-year extended licence period.

Leave to appeal against sentence was refused on the ground that the custodial term was manifestly excessive but granted on the issue of dangerousness and the necessity of an extended sentence under the Sentencing Act 2020. The appellant renewed his application on the first ground and appealed on the second. The central issues were whether the custodial term was excessive and whether the evidence established the statutory risk required for an extended sentence.

1. Custodial term: The renewed application for leave to appeal against the 7½-year custodial term was refused. The sentencing judge was entitled to assess the totality of repeated offending, determine the appropriate notional sentence and evaluate the mitigation. The sentence was not manifestly excessive.
2. Statutory threshold: Under s.280 of the Sentencing Act 2020, the court had to be satisfied on the evidence that the appellant presented a significant risk of serious harm occasioned by the commission of further specified offences. The burden was not reversed. It was for the court to establish the statutory risk, rather than for the appellant to demonstrate its absence.
3. Risk assessment: The court applied the guidance in R v Lang [2006] 1 WLR 2509. The assessment required consideration of the current offence, offending history and any pattern of offending, relevant social and economic circumstances, and the offender’s thinking, attitude towards offending and supervision, and emotional state. A pre-sentence report could guide but could not bind the sentencer.
4. The evidence was insufficient when considered in totality. The appellant had no previous convictions. The offences involved one victim, and there was no other evidence of a sexual attraction to teenage girls or of a pattern of similar offending. His age and limited potential for change were relevant, but had to be balanced against his previous law-abiding history. His new relationship with a woman who had a daughter of a similar age did not itself evidence inappropriate conduct.
5. The pre-sentence report did not clearly identify evidence supporting a significant risk of serious harm. Its low assessment of the likelihood of reoffending was met only by an unreasoned contrary opinion, based principally on the appellant’s denial of sexual attraction to children and victim-blaming. Those matters raised concern but were insufficient, without more, to establish the statutory risk. The judge’s approach potentially reversed the burden of proof.
6. The prosecution had not sought a Sexual Harm Prevention Order, and the judge had not addressed why such an order would be inadequate if a risk existed. The assessment of dangerousness was therefore flawed, the conditions for an extended sentence were not met, and the appeal on that ground was allowed. The extended sentence was quashed and replaced by a determinate sentence of 7½ years’ imprisonment.

1. Crown Court at Canterbury: The appellant pleaded guilty to 14 counts of sexual activity with a child and was sentenced to an extended determinate sentence of 12 years.
2. Single judge: Leave to appeal was refused on the alleged excessiveness of the custodial term but granted on the issue of dangerousness and the extended sentence.
3. Court of Appeal (Criminal Division): The renewed application on the custodial term was refused. The appeal on dangerousness was allowed, the extended sentence was quashed and a determinate sentence of 7½ years’ imprisonment was imposed.