Sentences for Public Protection
In 2016 the Court of Appeal provided much needed guidance in the context of sexual offending upon sentences for offenders of particular concern; R v LF  EWCA Crim 561  1 WLR 4432  2 Cr App R (S) 30. However, in this complex area of sentencing the appeals, including those involving the imposition of unlawful sentences, have continued.
R v Thompson; R v Cummings; R v Fitzgerald; R v Ford  EWCA Crim 639  2 Cr App R (S) 19  Crim LR 593
This conjoined appeal concerned the application of section 11(3) of the Criminal Appeal Act 1968, which provides that an appellant should not be more severely dealt with on appeal. The Court examined whether the statutory provision prohibited the court replacing an unlawful determinate sentence with a restructured sentence for offenders of particular concern or an extended sentence. The Court held that it had to be satisfied that, taking the case as a whole, an appellant was not being dealt with more severely on appeal. That required a detailed assessment of the impact of the proposed substitute sentence, which would include consideration of entitlement to automatic release, parole eligibility and licence regime. If a custodial sentence was reduced, the addition of non-custodial orders (such as a Sexual Harm Prevention Order) might be considered but, in every case, save for where the substituted sentence was “ameliorative and remedial”, that sentence had to be tested for its severity (or potential punitive effect) when compared to the original sentence.
Further, it was held that a court may, in appropriate (albeit exceptional) circumstances, impose consecutive extended determinative sentences where the total extended licence period was in excess of the maximum licence period for the single offence.
R v Thornton  EWCA crim 862
An appeal against the imposition of extended sentences for multiple historic sexual offences was allowed. The Court concluded that the threshold of dangerousness had not been met due to the passage of time, the failure of the sentencing judge to obtain a relevant risk assessment and the ill health of the appellant. Applying R v Thompson (ibid), sentences for offenders of particular concern were substituted in respect of the Schedule 18A Criminal Justice Act 2003 offences.
R v Powell  EWCA Crim 1074  Crim LR 775
This authority serves as a reminder that sentencing courts may not impose sentences for offenders of particular concern, pursuant to section 236A of the Criminal Justice Act 2003 at the same time as imposing an extended sentence, pursuant to section 226A of the same Act.
R v ARD  EWCA Crim 1882  Cr App R (S) 23  Crim LR 345
The Court of Appeal dismissed an appeal against the imposition of a twelve-year extended sentence with a custodial period of seven and a half years and an extended licence of four and a half years for an offence of penetrative assault of a child under thirteen. The Court held that the appropriate length of the extended licence was a matter of judicial assessment of the future danger posed by the appellant. The length of the extension was not to be determined by the age of the appellant, or lack of antecedent history, save for where these factors served as indictors as to the degree and length of future harm that the appellant posed. The Court would not interfere unless the Judge reached a wholly unreasonable conclusion.
Appeal – Deteriorating health of the Appellant
R v Stevenson; R v Minhas  EWCA Crim 318  2 Cr App R (S) 6
The Court considered the impact upon appeal of fresh medical evidence demonstrating an appellant’s deteriorating health from a condition known at the time of the sentencing hearing. It was held that the Court of Appeal may in rare circumstances have regard to such evidence in cases of serious ill health. Firstly, the principles set out in R v Bernard  1 Cr App (S) 135 would have to be engaged. These include the requirement that the medical condition is such that it will affect, either life expectancy, or the prison’s ability to treat the appellant, which could trigger the Home Secretary’s powers of early release. This might permit the court, in exceptional circumstances, to impose a lesser sentence as an act of mercy. Secondly, the medical evidence establishing the deterioration has be to be received by the court as fresh evidence, pursuant to section 23 of the Criminal Appeals Act 1968. The Court took the view that these requirements combined would present a substantial obstacle in all but the most compelling of cases.
This authority also provides a useful review of the principles applicable to advanced age and ill health of an offender relevant to mitigating in historic sexual offences at first instance.
Sentencing Guideline - Disclosing private sexual photographs and films with intent to cause distress
This offence, more colloquially referred to as ‘revenge porn’, has generated much discussion since being brought into force on 13th April 2015 by section 33 of the Criminal Justice and Courts Act 2015. The maximum sentence for the offence is one of two years imprisonment and consequently the Court of Appeal has seen examples of sentencing Judges’ grappling with the imposition of immediate custodial sentences: Regina v Carter  EWCA Crim 1429; Regina v Bostan  EWCA Crim 494  2 Cr App R (S) 15.
The Sentencing Counsel have now published a definitive guideline for ‘Intimidatory Offences’ which will be effective from the 1st October 2018. It contains guidance upon twelve different offences, which in addition to the offence of disclosing private sexual images, includes harassment, coercive and controlling behaviour and threats to kill.
Emma Goodall has considerable experience in defending serious sexual offences.