R v AGY

Sentencing guidelines permit a starting point to be adjusted upwards or downwards to reflect the particular features of culpability and harm. The factors listed for a harm category must be used when selecting the category, although other features may aggravate the sentence within that category. For historic offending, the modern equivalent offence may guide categorisation, but the maximum penalty applicable at the time must be respected. An appellate court should defer to a trial judge’s dangerousness assessment where the judge heard the evidence and the finding is not arguably wrong. Additional sexualised behaviour proved at trial may be considered in assessing risk, even if it was not separately charged. A surcharge order under the Criminal Justice Act 2003 (Surcharge) Order 2012 applies only where all offending before the court was committed on or after 1 October 2012.

The appellant was convicted at the Crown Court at Warwick of sexual assault of a child under 13, causing or inciting a child under 13 to engage in sexual activity, and historic indecent assault. He received consecutive sentences for offending against two family members, including an extended sentence, and a Sexual Harm Prevention Order.

On appeal, he challenged the sentences for the modern and historic offences, the finding that he was dangerous, and the victim surcharge. The central issues were the proper application of the sentencing guidelines, the assessment of future risk, and the legality of the surcharge order.

Appeal allowed in part.

1. Count 3. The categorisation of the offence as Category 3A was correct. The guideline permitted movement downwards from the five-year starting point because the offending was a single, short incident involving touching over clothing. However, the very serious abuse of trust meant that the sentence should remain within the category and should not approach its bottom. The aggravating and mitigating factors broadly balanced. Because Count 3 was the lead offence and was intended to reflect the appellant’s offending against his great-granddaughter, the figure was adjusted upwards to five years before totality was applied. The appropriate custodial term was four years.
2. Count 4. The modern equivalent offence could be used for guideline purposes, but the maximum penalty applicable in the mid-1990s had to be respected. The judge had wrongly placed the offence in Category 2 harm. The guideline required harm and culpability to be identified only by reference to its listed factors, and none of the Category 2 factors applied. The correct equivalent was Category 3A, with a one-year starting point and a range of 26 weeks to two years. The victim’s significant psychological harm and the fact that the offending occurred in the appellant’s home were nevertheless substantial aggravating factors. After totality and the different maximum penalties were taken into account, the appropriate sentence was 18 months’ imprisonment.
3. Dangerousness. Leave to appeal was refused. The trial judge had heard the evidence and was best placed to assess risk. He was entitled to consider additional sexualised behaviour proved to the criminal standard, although not separately charged, while remaining aware of the acquittals on other counts. The continuing denial, lack of insight and risk assessment supported the finding. Licence conditions and the Sexual Harm Prevention Order would not reduce the risk below a significant level.
4. The extended sentence on Count 3 was replaced by one of seven years, comprising four years’ custody and an extended licence period of three years, consecutive to the sentence on Count 4. The concurrent sentence on Count 1 remained undisturbed. The victim surcharge order was quashed because the Criminal Justice Act 2003 (Surcharge) Order 2012 applies only where all offending before the court was committed on or after 1 October 2012, as explained in R v WHD [2024] EWCA Crim 99 at [45].

1. Court of Appeal (Criminal Division): In [2026] EWCA Crim 882, the appeal was allowed in part. The sentences were reduced and the victim surcharge was quashed; the finding of dangerousness was upheld.
2. Crown Court at Warwick: Following conviction after trial, the appellant was sentenced on 13 March 2026 to consecutive sentences for Counts 3 and 4, a concurrent sentence for Count 1, and a Sexual Harm Prevention Order.