R v Frank Burton

When sentencing historic sexual offences, the court should select the closest modern comparator by reference to the conduct and the statutory scope of the current offence. For sexual assaults committed against children under 13, section 7 of the Sexual Offences Act 2003 may be a more appropriate comparator than section 9. Any difference between the current offence’s maximum sentence and the historic offence’s maximum must be reflected by an appropriate downward adjustment. In cases involving multiple victims, totality must reflect the separate criminality, whether by concurrent sentences with an adjustment or by consecutive sentences. Previous good character and an apparently blameless intervening life should normally carry little weight in historic sexual offence cases.

The appellant pleaded guilty at Stafford Crown Court to three historic counts of indecent assault on male children, committed in the 1980s. The offences involved three separate complainants, each under 10 at the time. On 31 May 2024, Recorder Fowler imposed concurrent sentences of five years and 10 months on each count.

He appealed by leave, alleging that the sentence was manifestly excessive. The parties had agreed that section 9 of the Sexual Offences Act 2003 was the appropriate modern comparator, but the judge used section 7. The central issues were the proper comparator, adjustment for the different statutory maximum, the weight of aggravating and mitigating factors, and totality.

Disposition

The appeal against sentence was dismissed. The sentence of five years and 10 months’ imprisonment on each count, concurrent, was not manifestly excessive.

1. The judge was entitled to use section 7 of the Sexual Offences Act 2003 as the closest modern comparator. Section 9 was not specific to children under 13. The conduct involved sexual assaults against the children’s will, rather than induced sexual activity. A starting point of four years for each offence was therefore permissible.
2. A downward adjustment was required to reflect that the historic offences carried a maximum of 10 years’ imprisonment, whereas the section 7 and section 9 offences carried a maximum of 14 years. Although the judge’s remarks did not clearly explain the calculation, any error did not make the resulting sentence manifestly excessive.
3. The court was entitled to take account of the victims’ young ages, the trust placed in the appellant, the offending occurring over a period, and the continuing harm caused. The victims’ age could be considered without double-counting because the historic offence was not specifically directed at child victims.
4. The appellant’s lack of previous convictions, age when offending, subsequent conduct and positive prison evidence were relevant. However, previous good character, exemplary conduct and an apparently blameless life after historic sexual offending should not normally receive significant weight. The appellant’s continued denial of culpability also meant that no credit for remorse was available.
5. Each offence involved a different occasion and victim. Totality therefore required the sentence to reflect all three offences. That could be achieved through concurrent sentences with an appropriate adjustment or through consecutive sentences. A notional sentence of six and a half years before credit for the guilty plea fell within the reasonable range.

• Court of Appeal (Criminal Division): On 2 July 2025, dismissed the appeal against sentence and held that the sentence was not manifestly excessive.
• Stafford Crown Court: On 31 May 2024, Recorder Fowler sentenced the appellant to five years and 10 months’ imprisonment on each of three counts, to run concurrently.