R v Liam Davis

In a sentencing reference, the harm category must reflect the victim’s extreme youth. A three-year-old is particularly vulnerable, placing the offending in harm Category 2 rather than Category 3. A culpability uplift for grooming requires a sufficiently certain finding; an inference which the appellate court cannot be sure of, especially where the trial judge made no finding, does not justify Category A. Totality requires the court first to sentence the instant offences, then to decide whether an allowance for earlier sentences is appropriate after considering all the circumstances. The exercise is not a mechanical deduction and the combined sentence must remain just and proportionate.

The Solicitor General referred an 18-month suspended sentence imposed by the Crown Court at Bristol after conviction for causing a child under 13 to engage in sexual activity. The trial judge treated the offending as Category 3B and took account of a previous sentence of 11 years and 3 months for sexual offences against another child. The reference argued that the victim’s extreme youth required harm Category 2 and that the evidence established grooming, requiring culpability Category A. The respondent accepted the harm error but disputed grooming and relied on totality, rehabilitation and time already served. The central issues were the correct guideline categories and the proper effect of the earlier sentence.

1. Disposition. The court granted leave to refer the sentence under s.36 of the Criminal Justice Act 1988. The reference was allowed and a sentence of 2.5 years’ imprisonment was imposed.
2. Harm and culpability. The offending was properly placed in harm Category 2 because a three-year-old child was particularly vulnerable due to extreme youth. The court could draw an inference of grooming from the evidence that the respondent took an interest in the children, gave sweets and gifts, and played with them. However, the trial judge had made no finding on grooming, and the appellate court was unable to be sure that grooming had occurred. The culpability classification was therefore Category B, making the offence Category 2B, with a six-year starting point and a range of three to nine years.
3. Totality. The court applied the Totality guideline. The appropriate sentence for the instant offences had first to be assessed independently. The court then had discretion to allow for the earlier sentence, having regard to all the circumstances. The exercise was not a mechanical deduction. Relevant considerations included the similarity and timing of the offences, the opportunity to disclose the later offences earlier, any undeserved bonus, mandatory minimum requirements, the offender’s age and health, and whether a combined sentence required downward adjustment to remain just and proportionate. The guideline was identified as being based in part on Green v R [2019] EWCA Crim 196.
4. Application. The instant offence would have justified four years’ imprisonment if sentenced alone. Ejaculation and the previous offending aggravated the sentence. Rehabilitation, counselling, medical difficulties and progress in custody and on licence provided substantial mitigation, although there was no guilty-plea credit. Because the offences involved a separate victim and separate harm, the lowest just and proportionate sentence after applying totality was a consecutive sentence of 2.5 years’ imprisonment.

• Court of Appeal (Criminal Division): On a reference under s.36 of the Criminal Justice Act 1988, leave was granted, the reference was allowed, and a sentence of 2.5 years’ imprisonment was imposed.
• Crown Court at Bristol: The respondent was convicted after trial and sentenced to 18 months’ imprisonment suspended for two years, with a programme activity requirement. The offending was treated as Category 3B.